Max Planck Institute for Foreign and International Criminal Law

In light of the challenges posed by organized and complex crime in the risk society, the state, in its efforts to guarantee security, is relying less and less on traditional forms of reaction alone. Rather, it is increasingly– and proactively – engaging in preparatory measures in the area of repression. Long before any particular crime is committed, massive amounts of data are collected and processed in order to identify and substantiate possibly suspicious activity. In this area of so-called preventive law enforcement, the boundary between prevention and repression is eroding. Furthermore, the traditional view of law enforcement as a task solely within the responsibility of the state is being questioned because of the breadth of support the business community is being asked to provide. This kind of involvement of the business community in crime prevention is the subject of this research project.

The goal of this project is to find the place within the conventional, dichotomous system composed of prevention and repression where preventive law enforcement activities belong and to clarify the permissibility of co-opting private enterprises to help carry out tasks that are the responsibility of the state. The project concentrates on the specific issues that are located in the intersection of these two – very broad – research fields. By combining these issues, the goal is to set priorities that follow from a strictly criminal law perspective. The study is expected to provide fundamental insights with respect to the legitimacy of recruiting private entities to engage in preventive law enforcement, findings that may be relevant for future manifestations of this rapid development.

Methodologically, the plethora of individual phenomena requires a focus on a limited number of areas. The finance and telecommunications sectors were selected. In spite of limiting the scope of the study to these economic areas, a comprehensive assessment of conceivable ways of co-opting private entities is still possible, including, for example, requiring businesses to make their infrastructures available, to save existing data, to collect data that are unnecessary for business operations, and to share data on the basis of specific criteria.

The dissertation is composed of the following sections: First, existing research on preventive law enforcement activities is presented. Next, the abstract manifestations of obligations in this area as seen in the two selected areas are discussed. This is followed by a discussion of the limits from a constitutional law perspective on the legitimacy of involving the business community in the provision of security, a task that is the “state’s responsibility.” The state’s monopoly of power, the reservations according to Art. 33 para. 4 of the Basic Law, and the principles of government structure will be examined. The focus of the study is thus the legal limits on the co-optation of the business community. In this context, it is necessary to distinguish between two categories of civil liberties holders: entities that are required by the state to engage in preventive law enforcement activities, on the one hand, and entities (or persons) affected by the required data collection and processing, on the other. The abstract forms of obligation described above provide the basis for the test. Finally, the reasonableness of the measures the entities are required to engage in, including alternatives and correctives, is analyzed.

The results to date show that neither the boundaries of initial suspicion nor the view of security as a task within the sole responsibility of the state is inviolable. Hence, neither preventive law enforcement itself nor the requirement that the business community participate in preventive law enforcement is plainly impermissible. The erosion of boundaries, however, presents a blatant break with prior criminal law culture. Traditional substantive and procedural safeguards must be adapted to these systematic changes, namely, the recruitment of the business community to participate in activities conducted prior to the onset of suspicion, in order to guarantee not only security but civil liberties as well.

This project is a doctoral dissertation supervised by Prof. Dr. Ulrich Sieber, University of Freiburg.