Basic right to guarantee the confidentiality and integrity of information technology systems

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The fundamental right to ensure the confidentiality and integrity of information technology systems (colloquially called IT basic right , computer fundamental right or fundamental right to digital privacy called) is a in the Federal Republic of Germany applicable fundamental rights , which primarily the protection of personal data is used in information systems stored or processed. This right is not specifically mentioned in the Basic Law , but was formulated as a special version of the general right of personality in 2008 by the Federal Constitutional Court or derived from existing fundamental rights provisions.

Formulation as a fundamental right

This fundamental right was reformulated in the guiding principles of the judgment of the Federal Constitutional Court of February 27, 2008 - 1 BvR 370/07, 1 BvR 595/07, BVerfGE 120, 274. The judgment was issued on the basis of constitutional complaints against the provisions in the Constitutional Protection Act of North Rhine-Westphalia on online searches . In accordance with the provisions of the Federal Constitutional Court, the general right of personality, which arises from Art. 2 Paragraph 1 in conjunction with Art. 1 Paragraph 1 of the Basic Law, also includes a fundamental right to guarantee the confidentiality and integrity of information technology systems.

This basic right is subsidiary and in particular withdraws from telecommunications secrecy ( Article 10, Paragraph 1 of the Basic Law), the right to informational self-determination and the inviolability of the home ( Article 13, Paragraph 1 of the Basic Law). So it is only used as a “ basic right of restraint ” to close gaps in protection.

restrictions

Interventions are only possible within narrow limits. Are allowed preventive state intervention - especially the so-called online searches  - in this fundamental right only if factual indications exist of a concrete danger for a supremely important right. Of paramount importance are the body, life and freedom of the person or those goods of the general public whose threat affects the foundations or the existence of the state or the foundations of human existence. It does not have to be certain with sufficient probability that such a danger will occur in the near future, but in individual cases certain facts must indicate such an impending danger emanating from certain people.

A measure that encroaches on this fundamental right generally requires a judicial order . The reason for this is that the citizen usually does not have a preventive possibility to have the legality of the measure checked by a court when secretly spying on personal data. Control may only be transferred to another body if it offers the same guarantee of independence and neutrality as a judge. However, the legislature may make exceptions for urgent cases .

Reactions

The decision of the Federal Constitutional Court was welcomed by the Greens and the FDP , who largely agree that the ruling is a milestone for civil rights . In contrast, representatives of the CDU welcomed the finding that the basic right can be restricted under certain narrow circumstances.

See also

literature

  • Christoph Herrmann: The basic right to guarantee the confidentiality and integrity of information technology systems. Origin and Perspectives. Lang, Frankfurt am Main [a. a.] 2010, ISBN 978-3-631-60984-2 ( European university publications . Series 2: Jurisprudence 5104), (At the same time: Frankfurt (Main), Univ., Diss., 2010).
  • Gerhart R. Baum , Constanze Kurz , Peter Schantz: The forgotten fundamental right. , FAZ, February 27, 2013 ( online ).

Web links

Wikiversity: current decision: on the judgment of the BVerfG v. February 27, 2008  - course materials

Individual evidence

  1. ↑ Short article "What do we call the new basic right now?" In Netzpolitik 2008
  2. ↑ Karlsruhe hardly leaves any room for secret online searches , heise online . February 27, 2008. Archived from the original on September 3, 2017. Retrieved September 3, 2017. 
  3. ↑ a b Stefan Krempl: New "basic computer right" also protects laptops and data in the main memory . heise online . February 27, 2008. Archived from the original on September 3, 2017. Retrieved September 3, 2017.
  4. ↑ Tagesschau commentary "Online searches should be implemented soon" February 27, 2008 (tagesschau.de archive)
  5. ^ WDR commentary "Defeat for the NRW government" (February 27, 2008) ( Memento of March 4, 2008 in the Internet Archive )