surveillance” if the surveillance is restricted exclusively to data emanating from an
ongoing telecommunication process. This must be ensured by technical precautions
and legal instructions.
bb) Also the guarantee of the inviolability of the home granted by Article 13.1 of the
Basic Law guarantees an elementary space to the individual with regard to his or her
human dignity, as well as in the interest of the development of his or her personality,
which may be encroached upon only under the special preconditions of Article 13.2 to
13.7 of the Basic Law, but leaves loopholes as regards access to information technology systems.
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The interests protected by this fundamental right are constituted by the spatial
sphere in which private life takes place (see BVerfGE 89, 1 (12); 103, 142 (150-151)).
In addition to private dwellings, company and business premises are also within the
scope of protection of Article 13 of the Basic Law (see BVerfGE 32, 54 (69 et seq.);
44, 353 (371); 76, 83 (88); 96, 44 (51)). The fundamental rights protection is not restricted here to the prevention of physical penetration of the dwelling. Measures by
means of which state agencies use special aids to obtain an impression of events
within the dwelling which are removed from the natural perception from outside the
protected area are also to be regarded as an encroachment on Article 13 of the Basic
Law. This includes not only acoustic or optical monitoring of dwellings (see BVerfGE
109, 279 (309, 327)), but also for instance the measurement of electromagnetic radiation with which the use of an information technology system in the dwelling can be
monitored. This can also concern a system which operates offline.
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Over and above this, a state measure which is connected to secret technical access
to an information technology system may be measured against Article 13.1 of the Basic Law, for instance if and insofar as staff of the investigation authority seek access
to premises that are protected as a dwelling in order to physically manipulate an information technology system there. A further case of the application of Article 13.1 of the
Basic Law is the infiltration of an information technology system in a dwelling in order
to monitor certain events within the dwelling by using it, for instance by using peripherals connected to the system, such as a microphone or a camera.
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Article 13.1 of the Basic Law does not however confer on the individual any acrossthe-board protection regardless of the access modalities against the infiltration of his
or her information technology system, even if this system is located in a dwelling (see
for instance Beulke/Meininghaus, Der Strafverteidiger – StV 2007, p. 63 (64); Gercke,
Computer und Recht 2007, p. 245 (250); Schlegel, Goltdammer’s Archiv für
Strafrecht 2007, p. 648 (654 et seq.); other view for instance Buermeyer, Höchstrichterliche Rechtsprechung im Strafrecht 2007, p. 392 (395 et seq.); Rux, Juristenzeitung 2007, p. 285 (292 et seq.); Schaar/Landwehr, Kommunikation & Recht 2007,
p. 202 (204)). The encroachment may take place regardless of location, so that
space-oriented protection is unable to avert the specific endangerment of the information technology system. Insofar as the infiltration uses the connection of the com-
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