Germany's top court limits police use of spyware to serious crimes

Germany's top court ruled on Thursday that police should only be permitted to secretly install spyware on a suspect's computer or smartphone to read their encrypted messages when investigating particularly serious crimes.

Crimes punishable by a maximum prison sentence of three years or less can no longer be investigated using this method, the Federal Constitutional Court ruled.

Since a 2017 amendment to the Code of Criminal Procedure, police have been allowed to use source telecommunications surveillance, also known as state trojans, to investigate certain crimes.

The method enables investigators to read encrypted messages on messaging services such as WhatsApp or Telegram, and to search through data stored on a suspect's device.

The Karlsruhe-based court said the reading of encrypted messages infringes on fundamental rights.

"Given the very serious nature of the infringement, source telecommunications surveillance must, for reasons of proportionality in the strict sense, be limited to the prosecution of particularly serious crimes," the court said.

Criminal offences carrying a maximum prison sentence of up to three years are considered minor, and can therefore not be deemed serious enough to justify the use of state trojans, the court said.

The court also found that secretly searching through data stored on suspects' computers and smartphones is partly incompatible with the Basic Law, Germany's de facto constitution.

However, the provision is to remain in effect until new regulations are introduced.

The case - one of many filed in Karlsruhe against the investigative powers - was brought by the digital rights group Digitalcourage.

"The state trojans are installed through security gaps that must be present in every smartphone, computer, tablet and games console," the association writes on its website.

By using these backdoors, which could also be used by criminals to access devices, the state is violating its duty to protect, the group said.

According to statistics published on Tuesday by the Federal Justice Office, there were a total of 104 judicial orders for source telecommunications surveillance in 2023, 62 of which were carried out.

Online searches were ordered 26 times and carried out six times, mainly in cases involving allegations of forming a criminal organization.

Police union representatives welcomed the decision, stressing that it is important that investigators can continue to use these tools when necessary.

Rainer Wendt, chairman of the DPoIG union, noted the method's use in protecting the population from the high terrorist threat.

"Religious, political and other fanatics all over the world are using every opportunity to gain publicity with their murderous attacks and spread fear and terror throughout the world," he said.

"With its ruling, the Federal Constitutional Court ensures that the constitutional state can protect the population from the dangers of terrorism while at the same time protecting their fundamental rights," Wendt continued.

The chairman of the GDP union, Jochen Kopelke, emphasized: "In a time of rapid technological developments, it is essential that the police have modern investigative powers. The decision ensures that we will continue to be able to effectively combat the most serious crimes in the future."