Bundesverfassungsgericht - Entscheidungen - Electronic Profile searc…ssible only in cases of specific danger to important legal interests
30.07.20, 15:56
The complainant, who was born in 1978, is a Moroccan citizen of Islamic faith and was a student at the date
when the court order for electronic profile searching was made. He filed appeals against the order of the Local
Court which were unsuccessful at the Regional Court and the Higher Regional Court.
II.
In response to the constitutional complaint, the First Senate of the Federal Constitutional Court held that the
orders challenged violate the complainant's fundamental right to informational self-determination. The
proceedings were referred back to the Regional Court for a new decision.
The decision is largely based on the following considerations:
The challenged orders of the Regional Court and the Higher Regional Court are based on a constitutional
foundation for the interference with rights. § 31.1 of the Act restricts the fundamental right of informational selfdetermination. It satisfies constitutional standards if it is interpreted to include the requirements of a specific
danger based on facts.
Electronic profile searching, which is dealt with in § 31 of the Act, serves to protect important interests (the
existence and security of the federal government and of a state, and the life, limb and freedom of a person). In
order to protect these interests, the provision authorises substantial interference with the right to informational
self-determination. The severity of the interference follows from the very scope of the authorisation and from the
possibility it creates of linking data from separate collections held by public and private agencies. In addition to
the identification data, which are stated separately, that is, name, address, date and place of birth, all other “data
needed in the individual case” may be included in the search. By combining and comparing the data supplied and
other data, a wide variety of new information can be obtained.
In addition, electronic profile searching creates an increased risk that the persons affected will be subject to
further official investigative actions. The fact that electronic profile searching has been carried out in accordance
with particular criteria may also in itself reproduce prejudices and the groups involved may be stigmatised in the
public perception.
Finally, it is significant that § 31.1 of the Act provides for interferences with fundamental rights without any
suspicion. All persons who satisfy the selection criteria may be included, and there are no requirements as to the
proximity of these persons to danger or to suspicious persons. The extent to which the measure is applied
without the existence of suspicion is increased even more if – as in the case of terrorist “sleepers” – it is precisely
the unobtrusiveness and conformism of behaviour that is chosen as a decisive search criterion.
In view of the weight of the interferences with fundamental rights that accompany electronic profile searching, this
method is reasonable only if the legislature satisfies the requirements imposed by a state under the rule of law by
providing that the interference should be made only at or above a minimum level of sufficiently specific danger to
the threatened objects of legal protection. Before such a specific danger arises, electronic profile searching is out
of the question, even if the adverse effect on the object of legal protection is of the greatest possible weight.
The principle of proportionality requires that the legislature may provide for severe interferences with a
fundamental right only at or above particular levels of suspicion or danger.
§ 31 of the Act names present danger as the threshold requirement for interference. This satisfies the
constitutional standards, but it is not a mandatory requirement from a constitutional point of view. If this were the
requirement, electronic profile searching would as a matter of course be carried out too late to be effective. It is
constitutionally sufficient if the legislature makes electronic profile searching admissible only subject to the
existence of a specific danger to the important objects of legal protection involved. According to this, it is a
requirement that in the specific case there be sufficient probability that a danger for these objects of legal
protection will arise in the foreseeable future. A specific danger in this sense includes an on-going danger.
However, sufficiently well-founded specific facts are necessary for the assumption of a specific on-going danger
arising from what are known as terrorist sleepers. A general situation of threat such as has existed without
interruption with regard to terrorist attacks since 11 September 2001, or tense situations in foreign policy, are not
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