eralism reform (Article 73 no. 9a of the Basic Law).
bb) “Online searches” are to accommodate the difficulties in investigations emerging
if criminal offenders, in particular those from extremist and terrorist groups, use information technology, and the Internet in particular, for communication and to plan and
commit criminal offences. The Presidents of the Federal Criminal Police Office and of
the Federal Office for the Protection of the Constitution stated during the oral hearing
that information technology systems are also used in order to establish and maintain
contacts worldwide to prepare violent terrorist acts. In particular if persons who are to
be attributed to extremist or terrorist groups encrypt or conceal stored files and communication contents, investigations carried out using the classical methods such as
seizing information technology systems and storage media, or network-based
telecommunication surveillance, could be made considerably more difficult or indeed
quite impossible.
9
Secret access to an information technology system can be very difficult (see below
for instance Buermeyer, Höchstrichterliche Rechtsprechung im Strafrecht 2007, p.
154; Hansen/Pfitzmann, Deutsche Richterzeitung – DRiZ 2007, p. 225; Pohl, Datenschutz und Datensicherheit 2007, p. 684). This is the case in particular if the user of
the target system has taken technical security precautions and regularly updates his
or her operating system. In the view of the experts heard in the oral hearing, the person concerned can at present at any rate effectively prevent infiltration by some of the
access modes under consideration. Such infiltration may at least be highly laborious,
depending on the circumstances of the individual case.
10
If infiltration is successful, it offers several advantages to the investigation authority
in comparison to traditional investigation methods. Because of the secrecy of access,
the person concerned is not forewarned for the future, unlike for instance in the case
of a house search, which is carried out openly. If the user of a computer only stores
data in encrypted form, an “online search” may allow such data to be collected in unencrypted form. By infiltrating the computer, the authority may access the data as the
user uses it at the time in question. The advantage of circumventing encryption technology is also significant to the surveillance of ongoing Internet communication. Insofar as such communication is encrypted as it takes place – this is in particular frequently the case with speech telephony – it can only be effectively monitored at the
terminal. Longer-term surveillance of the use of the computer can largely circumvent
the use of cryptographic technologies and other security precautions. What is more,
volatile data such as passwords and further information on the usage pattern of the
person concerned can be collected. This kind of information would hardly ever be
possible to obtain using classical investigation methods.
11
d) § 5.2 no. 11 of the North Rhine-Westphalia Constitution Protection Act empowers
the constitution protection authority to undertake the regulated measures in principle
under the general preconditions for data collection of intelligence services arising
from § 5.2 in conjunction with § 7.1 and § 3.1 of the North Rhine-Westphalia Constitu-
12
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