Evidence obtained from crypto phones often unusable in criminal proceedings

In its decision of 01.07.2021, ref. 525 KLs254Js 592/20 (10/21), the Berlin Regional Court ruled that encrypted communication data from crypto mobile phones may be subject to a prohibition of use in criminal proceedings. The Berlin Regional Court therefore decided not to open a trial on the merits against the accused and cancelled the arrest warrant against him.

What happened?

The public prosecutor's office charged the accused with 16 cases of illicit trafficking in narcotics in a not insignificant amount. The accused and his accomplices communicated via so-called crypto-cell phones of a Dutch provider. The communication via the crypto-cell phones is encrypted from end to end and runs via a server in France. In the course of their investigations into 15 drug trafficking cases, the French law enforcement authorities determined the chat histories on the server. For this purpose, the investigating authorities in France installed a so-called Trojan software that reads the chat messages, communication devices, identification numbers, user names and address books of the participants. The French investigating authorities also made their collected information available to the German investigating authorities. In the further course, the investigating authorities in Germany thus came across the accused. He was then charged by the Berlin-Brandenburg public prosecutor's office.

Communication data cannot be used as evidence against the accused here

In its decision, the Berlin Regional Court found that the data obtained by the prosecution authorities was subject to a ban on the use of evidence. The evidence obtained from the crypto-cell phones could not be used to prove the accusation of the crime. In the present case, a prohibition of the use of evidence resulted from the fact that the evidence had been obtained in disregard of regulations protecting the individual. Among other things, the evidence obtained from the crypto-cell phones had been obtained in violation of the IT fundamental right under Article 10 of the Basic Law and in violation of Directive 2014/41/EU. Furthermore, the requirements of §§ 100a, 100b StPO were not met. These allow telecommunications surveillance measures and require that there is sufficient suspicion of a criminal offence. In the case of the accused, however, there was no concrete accusation of a crime, as the investigations of evidence were only supposed to lead to a concrete suspicion.

Data collection "for stock" in principle inadmissible

Telecommunications surveillance in the run-up to criminal prosecution with the aim of collecting evidence "in advance" for future, still uncertain criminal proceedings or to establish a concrete initial suspicion is not provided for in German law. In addition, the surveillance of telecommunications without any reason is fundamentally foreign to German law. A reason also did not follow from the fact that in France, at the time of the investigations, there were possibly suspicions against unknown persons. It was necessary that these were directed against individual concrete accused persons and the person of the accused. The mere use of a crypto mobile phone by the accused did not allow the conclusion that the accused had engaged in criminal conduct that would justify a telecommunications surveillance measure pursuant to §§ 100a, 100b Code of Criminal Procedure. Furthermore, there was no criminal network to which the accused could have belonged. It was true that more than 60,000 people used so-called crypto mobile phones. In comparison, the 317 people identified by the French authorities were too few.

Exceptions possible for serious violations of the law

The prerequisites for an exceptional use of evidence were not given after weighing all the circumstances. There was no particularly serious violation of the law by the accused. In addition, since the information originated in France, the duty to provide information under the law on mutual legal assistance had been violated.

The decision is not yet final.

Source: Berlin Regional Court, Order of 01.07.2021, Ref. 525 KLs254 Js 592/20 (10/21).

GoldbergUllrich Lawyers 2021

Christopher Pillat, LL.M. (Intellectual Property Law)