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BVerfG objects to extended use of data: data mining for the pursuit of terrorists is partly unconstitutional

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Since 2015, German security authorities have been able to systematically evaluate the counter-terrorism database in order to gain new knowledge. For the BVerfG, this is sometimes going too far.

The new powers of the security authorities to systematically evaluate the counter-terrorism database are partly unconstitutional. In the area of ​​law enforcement, the so-called extended use of data is disproportionate, decided the Federal Constitutional Court (BVerfG) in a decision published on Friday. Specifically, the court objected to Section 6a, Paragraph 2, Clause 1 of the Anti-Terror File Act (ATDG), which came into force at the beginning of 2015. This regulates the extent to which authorities involved in a matter may use the data more extensively. The regulation is not compatible with the Basic Law and is therefore null and void (decision of November 10, 2020, Az. 1 BvR 3214/15). Otherwise, however, § 6a ATDG is constitutional.

The counter-terrorism file is a network file of police authorities and intelligence services of the federal and state governments serving to combat international terrorism. The file was set up in 2007 and is kept at the Federal Criminal Police Office (BKA). The data collection is intended to help prevent Islamist terrorist attacks in particular through the rapid exchange of information. In a first major ruling, the Federal Constitutional Court approved the controversial file in 2013, but declared individual provisions to be unconstitutional. The law had to be revised.

The constitutional complaint, on which the court has now decided, was directed against the newly inserted § 6a ATDG in the reform, which regulates the "extended use of project-related data". For the first time, it allows the authorities to create cross-connections between stored data sets using systematic search queries in order to gain new knowledge (so-called data mining). The complainant, a retired judge who was also the complainant in the first judgment, saw his fundamental right to informational self-determination as being violated by the regulation in § 6a ATDG.

"Condensed suspicion" required for expanded data mining

The BVerfG considered his constitutional complaint to be partially well founded. The interference by Section 6a (2) sentence 1 ATDG is not justified and the regulation is disproportionate. For the extended use of the counter-terrorism database for criminal prosecution "there must be a suspicion based on certain facts, for which concrete and condensed circumstances exist as a factual basis." The regulation does not do justice to this. You let the "necessity in the individual case" for clarification "further [r] connections of the individual case" suffice. To use the file for criminal prosecution, however, a "condensed suspicion" different from the initial suspicion in criminal proceedings is required, according to the Karlsruhe judges.

In contrast, the powers to collect information on international terrorism and to prevent attacks in Section 6a (1) and (3) ATDG are constitutional. "The provisions, by way of interpretation, are sufficiently clearly regulated intervention thresholds that meet the constitutional requirements," says the rest of the design of the standard from Karlsruhe.

dpa / acr / LTO editorial team