Max Planck Institute for Foreign and International Criminal Law

Rapid technological development is emblematic of the modern information society. Fear of Orwellian scenarios and the specter of the “transparent person” are becoming topics of public discussion. Erosion of at least some of the protections of fundamental rights seems imminent. This can be seen, for example, in the history of the provisions on telecommunication surveillance, the discussion surrounding the release of electronic toll payment records for purposes of criminal prosecution, and the introduction of rules governing data retention.
One of the numerous surveillance technologies is “positioning,” or the creation of a movement profile, with the help of technical resources. Cellular telephones, for example, are widely used mobile devices. So-called “location-based services” (LBS) offer services based on the user’s geographical location. To this end, determination of the device’s location is necessary and possible. Even without the use of LBS, the location of every cellular telephone can be determined by other means with varying degrees of precision, which makes the creation of a movement profile possible if the location data are compiled and projected onto a map. Positioning is possible on the basis of wireless networks (WLAN, among others) as well as remote access devices for – mostly mobile – computers. Satellite navigation facilitates precise identification of location. Fully automated toll surveillance systems can automatically recognize vehicles and document their routes. These and other techniques make possible the determination of the position of communication devices and of vehicles and – ultimately but indirectly – the location of persons.
Technical progress considerably augments the options of law enforcement agencies and contributes to their sometimes impressive successes in apprehending suspects. The use of radio frequency identification, cellular telephones, WLAN access sites, and toll surveillance bridges on expressways lead to the accumulation of large amounts of data. These data, which can be used to facilitate the purely technical identification of the location of users, pique the interest of the state. The fully automated creation of movement profiles is reality; German and European law already require cellular telephone providers to share location data with law enforcement agencies under certain circumstances.
The goal of this study is to provide an in-depth examination, presentation, and analysis of current investigative powers – in many aspects modified by the reform of covert investigative measures in the German Code of Criminal Procedure (StPO) in early 2008 – with a view towards whether these powers comply with constitutional requirements and whether they satisfy current (and future) law enforcement needs. In the process, reform proposals in the form of provisions that would better regulate the authority of law enforcement agencies to determine location are developed.
The methodology involves an evaluation of the relevant academic literature as well as a number of statements by experts. The first section of the study presents the technical principles and discusses and divides the techniques that can be used for determining location into categories based on their phenomenology. The second section consists of a legal analysis. First, constitutional and European legal principles are presented and current investigative measures that can be used to determine location or establish a movement profile enumerated. Then the categories mentioned above are subsumed under the respective norms. The result is incorporated into the third section of the study, in which the need for reform – given the current legal situation – is discussed. In the process, an attempt is made to identify reform options that would facilitate the development of an acceptable solution in the conflict between liberty and security.
The results to date show that even following the reform of early 2008 the authority of law enforcement agencies to determine the location of an individual or to create a movement profile is not cogently regulated and that constitutional concerns persist. Thus, it is likely that the norms will have to be “touched up” in order to keep up with advancing technology.

This project is a doctoral dissertation supervised by Prof. Dr. Ulrich Sieber.