State Trojans: Civil Rights Advocates Appeal to the Human Rights Court

The legal conflict over the use of state trojans by German intelligence agencies is reaching a new level. The Society for Civil Rights (Gesellschaft für Freiheitsrechte, GFF) has filed a complaint with the European Court of Human Rights (ECtHR) in Strasbourg. This step follows a disappointment in Karlsruhe: In September, the Federal Constitutional Court refused to accept the organization's constitutional complaint against the amended Article 10 Law for decision. This leaves a legal provision in force which, according to the complainants, fundamentally undermines the digital telecommunications secrecy.

The dispute is ignited by the amendment to the Article 10 Law, passed in July 2021. This reform marked a turning point, as it allowed all 19 federal and state intelligence agencies to use spyware for the first time. With these trojans, agents can hack digital end devices, read data, and monitor all communication as part of expanded source telecommunications surveillance. The GFF complains that the law provides hardly any significant prerequisites for the use of this technology. The civil rights advocates accuse the legislator of technically upgrading the agencies without simultaneously creating an effective control framework.

In Strasbourg, the GFF wants to have it established that these powers violate the right to private life enshrined in Article 8 of the European Convention on Human Rights. This includes the protection of telecommunication. Jürgen Bering, procedural coordinator at the GFF, states: "Intelligence agencies should not be left to their own devices when they have instruments for mass surveillance." Especially with such invasive tools, particularly strict rules and effective limits are indispensable.

Security vulnerabilities remain open

A central argument concerns general IT security. State trojans usually work by exploiting security vulnerabilities. This creates a problematic incentive for the state: instead of reporting such backdoors to manufacturers so they can be closed to protect all users, the agencies keep them secret. The GFF sees this as a disregard of the state's duty of care. With its SpywareShield initiative, the organization also calls for binding vulnerability management by the state.

Behind the complaint is a broad alliance of journalists, lawyers, IT experts, and activists who had already sought recourse in Karlsruhe in 2022. The GFF looks back on a series of legal successes, for example, it was able to secure a landmark ruling on the BND Law in 2020. The fact that the Karlsruhe judges have now refused to conduct a substantive review on the issue of state trojans forces the civil rights advocates to the next instance. In a separate proceeding, the GFF has also already appealed to the ECtHR to take action against the use of the federal trojan by the BND in particular.

(vbr)