Headnotes
to the judgment of the First Senate of 27 February 2008
– 1 BvR 370/07 –
– 1 BvR 595/07 –
1. The general right of personality (Article 2.1 in conjunction with Article
1.1 of the Basic Law (Grundgesetz – GG)) encompasses the fundamental right to the guarantee of the confidentiality and integrity of information technology systems.
2. The secret infiltration of an information technology system by means
of which the use of the system can be monitored and its storage media can be read is constitutionally only permissible if factual indications exist of a concrete danger to a predominantly important legal interest. Predominantly important are the life, limb and freedom of the
individual or such interests of the public a threat to which affects the
basis or continued existence of the state or the basis of human existence. The measure can already be justified even if it cannot yet be ascertained with sufficient probability that the danger will arise in the
near future insofar as certain facts indicate a danger posed to the predominantly important legal interest by specific individuals in the individual case.
3. The secret infiltration of an information technology system is in principle to be placed under the reservation of a judicial order. The statute
granting powers to perform such an encroachment must contain precautions in order to protect the core area of private life.
4. Insofar as empowerment is restricted to a state measure by means of
which the contents and circumstances of ongoing telecommunication
are collected in the computer network, or the data related thereto is
evaluated, the encroachment is to be measured against Article 10.1 of
the Basic Law alone.
5. If the state obtains knowledge of the contents of Internet communication by the channel technically provided therefor, this shall only constitute an encroachment on Article 10.1 of the Basic Law if the state
agency is not authorised to obtain such knowledge by those involved
in the communication.
6. If the state obtains knowledge of communication contents which are
publicly accessible on the Internet, or if it participates in publicly accessible communication processes, in principle it does not encroach
on fundamental rights.
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