I’m gonna tell you a story. A story that didn’t take place in a constitutional democracy, obviously. No. It took place in a small country far, far away. We, here in Northern Germany, call it ‘Bavaria’.

To begin with, you should know that in Germany, the ‘LKA’ (Police authority of each federal state here in Germany) isn’t allowed to search a suspect’s computer. There’s no legal basis for that, the BVerfG (Federal Constitutional Court) says. But monitoring a suspect’s communication generally is, in context of the § 100a StPO, considered legal. Here’s what happened:

  • The LKA searches permission to monitor a suspect’s communication. It is granted by a judge of the Local Court.
  • The LKA installs a Trojan (the famous ‘Staatstrojaner’) on the suspect’s laptop and monitors his communication over Skype, which is allowed. The LKA also takes about 60.000 screenshots, snapping the suspect’s browser usage. That’s the part there’s no legal basis for.
  • The District Court declares that it was forbidden for the LKA to take screenshots.
  • The Pirate Party of Bavaria presses charges against the Bavarian Interior Minister, President of the LKA and others. They may have made themselves guilty of spying out and absorbing data, as well as setting up for it (§§ 202a, 202b, 202c StGB).
  • The Public Prosecution Service doesn’t think it’s necessary to investigate. The LKA’s actions were greenlit by the judge of the Local Court, they say. This is just not the case. The District Court made that clear.
    I want to stress that the prosecution didn’t even begin. There was no investigation because the public authority that’s responsible for bringing in an accusation was under the impression that there was no breach of law. A breach of law that already was identified by a court.
    Unfortunately, only a person concerned (the guy whose laptop was searched) can take further action in this case. There’s nothing noteworthy the Bavarian Pirate Party or anyone else can do.
    Because this matter isn’t that simple it took me a while to figure out the magnitude of this unlawful behaviour. But some the government agencies seem to be really distinct about not letting this whole trojan thing lead to consequences of any kind.

It makes me sad that inability to deal with tech now is suppressed with inability to face up to a democratic process.