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Analysis: Germany stops Big Brother law

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by Stefan Nicola
Berlin (UPI) Mar 03, 2008
The decision by Germany's highest court Wednesday to annul a controversial state law allowing secret computer searches for security and anti-terror investigations rightfully puts civil rights above security interests, experts say.

If you are living in Germany, police will have a tougher time secretly invading your computer. Judges of the Federal Constitutional Court in Karlsruhe, Germany's highest court, had voided a security law in the state of North Rhine-Westphalia that had allowed the use of computer spy software, arguing that it did not adequately uphold the basic rights of those individuals under investigation.

Intelligence agencies will now only be able to collect data secretly from suspects' computer hard drives if they have evidence that "legally protected interests," like human lives or state property, are in jeopardy, the court said. They also must get permission from a judge before they upload Trojan horse spyware onto a suspect's computer. The court also forbade the collection of a suspect's personal data.

German Interior Minister Wolfgang Schaeuble, who over the past years has repeatedly called for better means to combat terrorism, had supported the controversial law, thus clashing with data protection officials and Justice Minister Brigitte Zypries, who had called it a "significant breach of the basic rights" of every citizen.

Schaeuble, however, tried to portray himself as the winner in the whole story, noting that the court had not made online searches illegal.

"Online searches, in a limited number of cases, are legal to defend against great threats," he said Wednesday in response to the verdict, adding that modern technologies still had a future in fighting terrorism. "In order to be able to protect citizens, the security authorities have to keep up with the technological developments of the offenders by using modern IT technology and professionally encoded communication."

Schaeuble, who has the backing of German Chancellor Angela Merkel, said Berlin will now draft a bill that -- in accordance with the court's decision -- would enlarge the powers of its federal security agencies when it comes to online searches.

Officials applauded the court's decision to annul the state law, with Peter Schaar, the country's data protection official, saying it was the most important ruling in 25 years and strengthening citizens' basic rights.

The state law, legal for just over a year, had allowed security officials to monitor private e-mails, Internet telephony and chats, as well as storing hard drive data, including images and word documents. Schaeuble had wanted a similar law for his federal agencies but will now have to change his plans.

Schaeuble has in the past come under fire for advocating tougher anti-terror measures, such as "targeted killing" of terror suspects and a ban on the use of the Internet and cell phones by suspect foreigners living in Germany.

One of the most conservative, but also one of the most senior members, some of Schaeuble's security plans have made it into law -- with Merkel's backing.

After a foiled train bombing in western Germany, Schaeuble managed to push through the anti-terror file, a database that includes wide-ranging details on a terror suspect, such as the person's religious affiliation, profession, travel data, bank and telecommunications history, and possible contact persons. The idea for a central anti-terror database was first raised by Schaeuble in 2002 but failed at the time because of privacy concerns. However, with Merkel's backing and due to widespread public concern over the foiled train bombings, it was approved in late 2006 and officially went into effect in early 2007.

The country's highest court has a tradition of stopping all-too-quick security laws, with several annuls directed at laws that were rushed through in the days and weeks after the terror attacks of Sept. 11, 2001, including a law that had allowed to shoot down passenger planes in case of an attack.

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