In an order published today, the Third Chamber of the Second Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint challenging a criminal conviction and prison sentence that was reached on the basis of evidence from surveillance of ANOM communications.
The constitutional complaint is inadmissible. The complainant has not coherently demonstrated the possibility of a violation of a fundamental right or a right equivalent to a fundamental right, specifically the right to a fair trial in accordance with the rule of law under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law. Based on the complainant’s submissions in these proceedings, the use of ANOM data as evidence does not raise any constitutional concerns.
Facts of the case:
The complainant was convicted by the Regional Court and received a prison sentence. The factual findings supporting the conviction were almost entirely on the basis of evidence from text messages from encrypted ANOM communications that could be attributed to the complainant. The Federal Court of Justice rejected the complainant’s subsequent appeal on points of law as unfounded to the extent that it challenged the use of ANOM data as evidence.
With his constitutional complaint, the complainant asserts, inter alia, that the challenged decisions violate his right to a fair trial in accordance with the rule of law. He contends that the Regional Court and the Federal Court of Justice did not sufficiently consider whether the procedures to obtain the ANOM data, which occurred outside of Germany, complied with constitutional principles that grant a minimum level of fundamental rights protection and are indispensable under Art. 79(3) in conjunction with Art. 20(3) of the Basic Law. In addition, the complainant argued that the lack of transparency regarding the remote monitoring of devices with ANOM communications capability meant that he was unable to raise any objections to the data collection.
Key considerations of the Chamber:
I. The constitutional complaint is inadmissible. The complainant has not coherently demonstrated the possibility of a violation of a fundamental right or a right equivalent to a fundamental right. Contrary to his assertions, the use of ANOM data does not raise any constitutional concerns.
1. To the extent that the complainant contends that the ordinary courts did not sufficiently consider whether the procedures to obtain ANOM data complied with constitutional principles and provided a minimum level of fundamental rights protection because ‘nearly nothing is known’ regarding the means by which the data was obtained, this is contradicted by the complaint’s own statement of the facts. According to this, it is known that at the direction of the FBI, the software on ANOM devices was equipped with a ‘backdoor’ function that ensured that every message sent via the messenger service was sent to a so-called iBot server without the user’s knowledge, in the form of an encrypted copy that could be uniquely matched to the respective device. These messages would then first be decrypted by the FBI in a temporary storage on that server, then re-encrypted into that storage and finally forwarded to the transfer server with a few days’ delay. It is also known that a still unknown EU Member State made the iBot server available for the storage of messages on the basis of a bilateral mutual legal assistance treaty with the USA and transmitted the messages to the USA without decrypting and evaluating them itself. According to the findings of the ordinary courts, this process was conducted by the third country on the basis of court orders obtained in accordance with its procedural law.
The only information lacking is the identity of the state which hosted the server and the specific circumstances and content of the court orders. However, it is not clear why this information is relevant to the present case. While a review of these orders may have provided information as to whether the retention and transmission of the data to the USA complied with the law of the unknown EU Member State, that information is ultimately not relevant. If there are no indications that the foreign state to which the request for legal assistance was made violated the principles of the rule of law and the protection of human rights, it must be assumed that no such violation occurred.
2. The additional assertion of the complainant that the procedures to obtain evidence both in the USA and the unknown EU Member State did not meet the minimum requirements of the rule of law and also lacked the indispensable standards of fundamental rights protection is not supported by his factual submissions.
a) Among other things, the constitutional complaint seeks to substantiate a violation of the minimum requirements of the rule of law with the argument that conducting the surveillance of ANOM devices in a state other than the USA could only have been done to evade the limitations imposed by the Fourth Amendment of the US Constitution (protection of privacy) and by the Wiretap Act, which the complainant contends would have applied if communications infrastructure in the USA had been used. This argument is not sound. If the provisions of US law cited by the complainant only apply – as the complainant claims – in case of access to communications infrastructure in the USA, then a case of telecommunications surveillance that took place outside of this infrastructure must be outside their scope of application from the outset. The initial premise of the constitutional complaint therefore does not demonstrate an unlawful circumvention of the law, but merely that the FBI did not act within the scope of application of the cited provisions.
b) With regard to the obtaining of evidence in the unknown EU Member State, the constitutional complaint alleges that the surveillance did not serve a legitimate purpose and therefore violated the principles of proportionality which belong to the minimum standards of the rule of law. This argument is also unsound. The constitutional complaint does not substantiate that a criminal prosecution of persons affected by the surveillance in the USA according to US law would not have been possible due to the lack of connection to the USA. Above all, the constitutional complaint does not address the question of whether the data obtained was relevant for the USA in regard to criminal proceedings brought against individuals in the USA who participated in the development and marketing of ANOM in the belief that it was a functional encrypted messenger service. The complainant even shows that such criminal proceedings took place in the USA. Consequently, it need not be decided here whether a violation - which itself appears doubtful - of the rules on mutual legal assistance, which the complainant asserts took place as part of the actions of the USA and the unknown EU Member State, would be sufficient to support the assumption of a violation of the minimum requirements of the rule of law.
3. In addition, to the extent that the complainant contends that he did not have sufficient opportunity to influence the course and result of the criminal proceedings against him because of insufficient transparency regarding the surveillance of ANOM devices, these claims do not result in a constitutionally mandated prohibition against the use of such evidence. Even if one were to take the view of the complainant that insufficient transparency regarding how evidence was obtained outside of Germany could lead to a constitutional prohibition on its use, there is no such lack of transparency in the present case. Here, it is only unclear whether the storage and transmission of data would be permissible under the national law of the unknown EU Member State. However, this is not relevant to the question of whether a prohibition on the use of the evidence exists in Germany.
II. Finally, the Chamber points out that, independent of the complainant’s submissions in the present case, it does not currently have any information about the collecting of ANOM data that could provide indications for the assumption that the data obtained is in principle inadmissible as evidence under constitutional law.