Constitutional Court – Protecting mobile phones is often unconstitutional


Mobile telephones or mobile data carriers may only be seized if appropriate judicial authorization is available. Anything else is contrary to data protection law and the right to private life, the Constitutional Court said.

This is justified by the fact that fundamental rights must be proportionate. “The seriousness of the intervention must not exceed the importance of the goal to be achieved.”

However, the judges note that this can very well happen in the case of criminal offenses and in the field of crime prevention.

The starting point for this debate was a request from a Carinthian entrepreneur who is being investigated on suspicion of breach of trust.

Unlike other objects, access to a data medium allows not only a selective view of the behavior of those affected, but also a comprehensive insight into essential parts of their past and present lives. In this way, “comprehensive personality and movement profiles can be created that allow detailed conclusions to be drawn about the behavior, personality and attitude of the affected person.”

A comparison with the seizure of other items is incorrect because the established data can be linked and compared with other data. Under certain circumstances, deleted data can also be recovered.

The interference with data protection and private life is particularly intensive because seizure is possible even if there is a first suspicion of a minor crime, the Constitutional Court emphasizes. Seizures can also be seized from a non-suspected third party. All people whose data is on the secure data carrier are also affected.

The Constitutional Court states that only judicial approval can be used to verify whether the legal requirements for seizure and evaluation have been met and whether the security authorities have exceeded their powers. If the seizure is approved, the judge must also determine which data categories and data content from which period may be evaluated for which research purposes.

The court imposes further requirements on a new regulation: the judge’s reservation in approving the seizure does not yet provide sufficient legal protection for those affected. The legislator must weigh and balance the public interest in criminal prosecution and the fundamental rights of those affected .

Source: Krone


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