Max Planck Institute for Foreign and International Criminal Law

Object of Research:

The access to telecommunication traffic data is an investigative instrument, which, in conjunction with the surveillance of the telecommunication content itself, has an increasingly meaningful role. Such connection data plays a central role in the fight against data-network crime. Moreover, in view of the dramatic uptake of digital communications, traffic data is important for the investigation of almost all areas of crime. Traffic data can be used to determination the whereabouts of individuals, the further investigation of evidence, or the disclosure of criminal networks. The access to traffic data is – as the draft Data Retention Directive of the European Union (14.12.2005) demonstrates – regarded as an indispensable information source.

The legal basis for such measures was, until end of 2001, contained in § 12 FAG. However, a regulation based outside of the German Code of Criminal Procedure was, on a number of grounds, considered inadequate. Moreover, constitutional misgivings also existed. With the introduction and entry into force of §§ 100g, 100h of the German Code of Criminal Procedure on the 1.1.2002, the legislature took into account these concerns and misgivings. The validity of §§ 100g, 100h of the German Code of Criminal Procedure was extended on the 9.12.2004 to the 31.12.2007.

The investigation concerning the implementation and evaluation of §§ 100g, 100h of the German Code of Criminal Procedure is connected with two previous studies entitled "Legal reality and efficiency of wiretapping measures according to the §§ 100a, 100b of the German Code of Criminal Procedure and other undercover investigation measures" (1999 to 2004) and the "Legal reality and efficiency of eavesdropping measures according to §§ 100c I No. 3 of the German Code of Criminal Procedure" (2002 to 2004). The present study forms part of an ongoing research project that occupies itself with the role of new proactive and preventive investigative methods for the formation and development of criminal social control especially in the area of transaction crime.

Aim of the Project:

The evaluation of the legal reality of the measures found in §§ 100g, 100h of the German Code of Criminal Procedure will include an analysis of their practical application, regulation and efficiency, as well as an analysis pertaining to the utilization of the data collected. The use of other telecommunication surveillance measures in conjunction with the data collection methods outlined in §§ 100g, 100h will also be explored. The study will especially occupy itself with an inquiry into the number of orders made and the number of concerned person affected, and the results of such measures. Furthermore, practical and legal problems of application shall be examined, including their relationship to the legal regulations. Finally, it is aim of this investigation to subject the inclusion of telecommunication businesses in criminal proceedings to a theoretical and empirical analysis. In so doing, the consequences for telecommunication providers (for example, in the form of costs) will also form part of the investigation regarding the interaction between the private sector and prosecuting authorities.

Methodology:

The complete project consists of three chronologically ordered modules that are to be executed in three phases. In the first phase of the study, a nationwide survey of prosecuting attorneys will take place on the basis of standardized questionnaires. This module should contribute to the exploration of the experiences of prosecuting attorneys (during 2005) with the application and legal arrangements concerning applications to monitor telecommunication traffic data, as well as their opinions and attitudes towards the regulations and their practical application. The results will be further expanded in the second phase of the project through an analysis of criminal files. This file analysis will extend to the four federal states of Baden-Württemberg, North Rhine-Westphalia, Mecklenburg-Western Pomerania and Berlin. 150 files from each state will be included. The file inquiry module will therefore include 600 criminal files. The period of examination refers to the years 2003 and 2004. Police and justice authorities do not record the relevant cases separately, so accordingly, they must be identified through the telecommunication providers. As was proven through preparatory enquiries, the telecommunication providers have such data bases at their disposal. These are generated in the course of the internal handling of cases, especially in the context of cost recording and invoicing. At all providers basic data can be accessed, which, at the very least, contains the file reference as well as the place and the responsible circuit that requested the data. These details are adequate to unequivocally identify the cases, to draw a sample of the corresponding files, and to be able to order these from the Ministry of Justice. Although the documentation principles and retention periods of the different providers vary, but cases from the years 2003 and 2004 are completely available. Thus, the cases from these two years can be consistently recorded and used to form a basis for the drawing of a representative sample. The findings from the survey and the results of the file analysis will constitute the basis for the deepening expert interviews, which will be executed in the third phase of the study. In this final phase, telecommunication providers, judges, police officials, prosecution and defence attorneys, and data protection officers will all be questioned. These interviews should determine the different effects of the present regulations on the various work areas and the personal experiences of those involved. Suggestions for improvement from the interviewed practitioners will also be gauged. Moreover, the practitioners will be asked in detail for their assessments, attitudes, and criticisms of the norms in general and their application in practice. Furthermore, the interviews offer an opportunity to examine the observations from the first investigation phases and to deepen the previous findings.

State of the Project:

The project is presently in its final phase. The aforementioned questionnaires have been evaluated and the interviews, carried out in the middle of December, have also been summarized. The results of the file analysis are currently being assessed.

Financial Support:

The project is being carried out with financial support from the German Federal Ministry of Justice.