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Freedom in the digital age
Art. 10, 13

Eavesdropping, state trojans, secret apartment searches

In 2020, we filed a constitutional complaint against the new security and public order law in the state of Mecklenburg-Vorpommern. In February 2023, the Federal Constitutional Court declared the law to be in large parts unconstitutional.

The new Security and Order Act (SOG) grants the police in Mecklenburg-Vorpommern numerous new surveillance powers in 2020, which deeply interfere with the fundamental rights of citizens*. Together with the alliance „SOGenannte Sicherheit“ we have filed a constitutional complaint against the law. The plaintiffs consist of an activist, a lawyer, a journalist and two active soccer fans. In February 2023, the Federal Constitutional Court declared the law to be in large parts unconstitutional.

The constitutional complaint is directed, among other things, against longer-term observations by police officers, the use of undercover investigators, wiretapping in and outside the home, the use of state trojans and targeted police checks. All of these measures are to be permissible in advance of a concrete danger. This means that practically any person can be comprehensively monitored if the police believe that they could one day become "dangerous."

Intensive encroachment on fundamental rights without concrete danger is unconstitutional

Under the new law, undercover investigators are to be deployed and longterm observations can be carried out if a criminal act is threatened at some point in the future (Section 33 SOG M-V). Such surveillance measures intensively encroach on the fundamental rights of the persons concerned and are therefore in principle only permitted if the police have sound evidence that a "concrete danger" currently exists. The Federal Constitutional Court has already made this clear in its ruling on the BKA Act. Under the new law, wiretapping of homes is also to be permissible in the run-up to a concrete danger (Section 33b SOG M-V), although the Basic Law stipulates that there must even be an "urgent danger" for such wiretapping measures (Article 13 (4) GG).

Police to be allowed to enter homes to install state trojans

The constitutional complaint is also directed against the use of state trojans, i.e. state spy software, on smartphones and computers. State trojans enable the police to read out computers and read encrypted communications, for example from messenger chats (so-called online searches, Section 33c SOG M-V, and source telecommunication surveillance, Section 33d (3) SOG M-V). State trojans deeply encroach on privacy because they allow insights into a variety of highly sensitive information.

Not only the state trojans themselves, but also the way they are to be installed is problematic from a fundamental rights perspective: the law allows the police to exploit security vulnerabilities instead of reporting them to the manufacturers. This weakens the IT security of all citizens. In addition, it should be possible for the police to enter homes in order to install the spyware. Precisely because people often carry their smartphones with them all the time, it cannot be ruled out that police officers enter the homes of sleeping people at night in order to infiltrate their devices.

Targeted controls and dragnet searches violate the right to informational self-determination

The law also allows the police to order people to undergo targeted checks (§ 35 SOG M-V). During targeted checks, vehicles and persons are searched, for example. According to the explanatory memorandum to the law, this is intended to "unsettle potentially dangerous persons," i.e., persons whom the police assume could commit a crime at some point in the future. However, third parties who happen to be in the same vehicle as the "target person" are also affected. This allows the police to create movement profiles of numerous people. This violates the right to informational self-determination of all those affected. The law also encroaches disproportionately on this right through dragnet searches, which bring together a large number of personal data (Section 44 SOG M-V).

In addition, all of the surveillance measures provided for by the law do not ensure that they are monitored in accordance with the rule of law. Although the data protection commissioner is responsible for monitoring the police, he or she is not allowed to issue orders (Section 48b SOG M-V). Thus, in practice, the supervision threatens to run dry.

Activist, lawyer, journalist and soccer fans file lawsuit

The plaintiffs include activist Salome Krug, defense attorney Katrin Hildebrandt, a journalist and two soccer fans of F.C. Hansa Rostock who are active in the fan scene. They are represented by the lawyer Dr. Anna Luczak from Berlin.

Further information

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