Germany’s Top Court Limits Police Spyware to Serious Crimes Only

Germany’s Federal Constitutional Court has issued a landmark ruling sharply restricting the use of state spyware by law enforcement. The decision directly addresses 2017 regulations that allowed police to monitor encrypted communications with few limitations. Now, spyware may only be deployed in investigations of serious crimes punishable by at least three years in prison.

The court emphasized that such surveillance tools represent a “very severe interference” with fundamental rights, citing both Article 10 of the Basic Law (protection of telecommunications) and constitutional protections for IT systems. These technologies, the court noted, can capture “all raw data exchanged” and expose nearly every form of a person’s digital life — from private messages to patterns of daily activity.

Privacy advocates, including the organization Digitalcourage, had argued that the old rules allowed spyware to monitor individuals not even under investigation. The court agreed, stressing that modern surveillance software is too powerful to be justified outside of the most serious cases, and that broad application undermines the constitutional right to informational self-determination.

The ruling also reflects broader trends within the European Union, where the European Parliament has pushed for stringent safeguards around spyware use — including prior judicial authorization, strict proportionality, independent oversight, notification to affected individuals, and deletion of irrelevant data after investigations. These measures, advocates say, are essential to prevent abuse, such as the politically motivated surveillance scandals linked to commercial spyware like Pegasus.

Critically, the decision acknowledges the technical reality of modern spyware: end-to-end encryption protects data in transit, but once a device itself is compromised, communications can be intercepted before encryption or after decryption. This means such tools are exceptionally intrusive — capable not only of reading messages but also of logging keystrokes, activating microphones, and harvesting location data in real time.

While law enforcement agencies argue these capabilities are vital in combating terrorism and organized crime, the court’s stance reinforces Germany’s “Sonderweg” — a distinct path prioritizing strong privacy protections rooted in post-war constitutional values. The decision sends a clear signal: in the digital age, security and liberty must be balanced through narrowly targeted, proportionate measures and robust oversight.

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