b) Insofar as § 5.2 no. 11 sentence 1 alternative 1 of the North Rhine-Westphalia
Constitution Protection Act grants powers to perform secret reconnaissance of the Internet, the provision initially regulates how knowledge is obtained of generally accessible communication contents by the constitution protection authority. One example
of this would be the accessing of an open Web site on the World Wide Web using a
Web browser. According to the reasoning of the Act, it is also intended to enable the
constitution protection authority to participate in chats, auctions or exchange fora, or
to discover concealed Web sites using a cover (see Landtag document (Landtagsdrucksache – LTDrucks) 14/2211, p. 17). It would also be conceivable, for instance,
for the constitution protection authority to use a password obtained elsewhere – for
instance from an informant or by means of so-called keylogging – in order to access
an e-mail inbox or an access-protected Web site. In such a case, the constitution protection authority would also obtain knowledge of the contents of Internet communication externally via the channel provided therefor.
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c) Secret access to information technology systems using technical infiltration, as
regulated in § 5.2 no. 11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution Protection Act, is currently the subject of intensive discussion in the political
arena and among legal circles under the heading of “online search/online surveillance” (see on the legal debate for instance Buermeyer, Höchstrichterliche Rechtsprechung im Strafrecht – HRRS 2007, p. 392; Hofmann, Neue Zeitschrift für
Strafrecht – NStZ 2005, p. 121; Hornung, Datenschutz und Datensicherheit – DuD
2007, p. 575; Rux, Juristenzeitung – JZ 2007, p. 285; Schaar/Landwehr, Kommunikation & Recht – K&R 2007, p. 202; Schlegel, Goltdammer’s Archiv für Strafrecht – GA
2007, p. 648; Warntjen, Jura 2007, p. 581). Such measures were already executed in
isolated cases by federal authorities without a specific statutory empowerment. Little
is known of the nature of the practical execution of previous “online searches” or of
their successes. The Presidents of the Federal Criminal Police Office (Bundeskriminalamt) and of the Federal Office for the Protection of the Constitution (Bundesamt
für Verfassungsschutz), who were heard by the Senate during the oral hearing, have
not provided any information on this for lack of permission to provide appropriate testimony. The execution of such measures was moreover temporarily ceased when the
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Federal Court of Justice (Bundesgerichtshof) ruled that the Code of Criminal Procedure (Strafprozessordnung – StPO) did not currently contain a legal basis for such
measures (see Decisions of the Federal Court of Justice in Criminal Cases (Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt) 51, 211).
aa) The Land provision to be reviewed here contains the first and so far the only explicit empowerment of a German authority to engage in “online searches”. It is currently the subject of dispute at federal level as to which authorities are to be empowered to carry out “online searches” and under what preconditions. In particular, it is
being discussed at present to create such an empowerment for the Federal Criminal
Police Office in the course of its task to avert dangers of international terrorism –
which has been newly inserted into the Basic Law in the context of the so-called fed5/60
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