At the centre of this study stands an investigation concerning the utilization of telecommunication traffic data for purposes of prosecution (§§ 100g, 100h of the German Code of Criminal Procedure). This ties in with an already completed investigation relating to the monitoring of telecommunications in private dwellings (§§ 100a, c of the German Code of Criminal Procedure). The present study contains questions relating to the implementation, application and regulation of monitoring measures pertaining to telecommunication traffic data, as well as an evaluation of the effectiveness thereof. The combination of the inquiry concerning telecommunication traffic data with other investigative methods will receive special attention. Furthermore, the project will analyse questions regarding the inclusion of private companies (the telecommunication providers) in prosecution proceedings.

Ob­ject of Re­search:

The ac­cess to tele­com­mu­nic­a­tion traffic data is an in­vest­ig­at­ive in­stru­ment, which, in con­junc­tion with the sur­veil­lance of the tele­com­mu­nic­a­tion con­tent it­self, has an in­creas­ingly mean­ing­ful role. Such con­nec­tion data plays a cent­ral role in the fight against data-net­work crime. Moreover, in view of the dra­mat­ic up­take of di­git­al com­mu­nic­a­tions, traffic data is im­port­ant for the in­vest­ig­a­tion of al­most all areas of crime. Traffic data can be used to de­term­in­a­tion the where­abouts of in­di­vidu­als, the fur­ther in­vest­ig­a­tion of evid­ence, or the dis­clos­ure of crim­in­al net­works. The ac­cess to traffic data is – as the draft Data Re­ten­tion Dir­ect­ive of the European Uni­on (14.12.2005) demon­strates – re­garded as an in­dis­pens­able in­form­a­tion source.

The leg­al basis for such meas­ures was, un­til end of 2001, con­tained in § 12 FAG. However, a reg­u­la­tion based out­side of the Ger­man Code of Crim­in­al Pro­ced­ure was, on a num­ber of grounds, con­sidered in­ad­equate. Moreover, con­sti­tu­tion­al mis­giv­ings also ex­is­ted. With the in­tro­duc­tion and entry in­to force of §§ 100g, 100h of the Ger­man Code of Crim­in­al Pro­ced­ure on the 1.1.2002, the le­gis­lature took in­to ac­count these con­cerns and mis­giv­ings. The valid­ity of §§ 100g, 100h of the Ger­man Code of Crim­in­al Pro­ced­ure was ex­ten­ded on the 9.12.2004 to the 31.12.2007.

The in­vest­ig­a­tion con­cern­ing the im­ple­ment­a­tion and eval­u­ation of §§ 100g, 100h of the Ger­man Code of Crim­in­al Pro­ced­ure is con­nec­ted with two pre­vi­ous stud­ies en­titled "Leg­al real­ity and ef­fi­ciency of wiretap­ping meas­ures ac­cord­ing to the §§ 100a, 100b of the Ger­man Code of Crim­in­al Pro­ced­ure and oth­er un­der­cov­er in­vest­ig­a­tion meas­ures" (1999 to 2004) and the "Leg­al real­ity and ef­fi­ciency of eaves­drop­ping meas­ures ac­cord­ing to §§ 100c I No. 3 of the Ger­man Code of Crim­in­al Pro­ced­ure" (2002 to 2004). The present study forms part of an on­go­ing re­search pro­ject that oc­cu­pies it­self with the role of new pro­act­ive and pre­vent­ive in­vest­ig­at­ive meth­ods for the form­a­tion and de­vel­op­ment of crim­in­al so­cial con­trol es­pe­cially in the area of trans­ac­tion crime.

Aim of the Pro­ject:

The eval­u­ation of the leg­al real­ity of the meas­ures found in §§ 100g, 100h of the Ger­man Code of Crim­in­al Pro­ced­ure will in­clude an ana­lys­is of their prac­tic­al ap­plic­a­tion, reg­u­la­tion and ef­fi­ciency, as well as an ana­lys­is per­tain­ing to the util­iz­a­tion of the data col­lec­ted. The use of oth­er tele­com­mu­nic­a­tion sur­veil­lance meas­ures in con­junc­tion with the data col­lec­tion meth­ods out­lined in §§ 100g, 100h will also be ex­plored. The study will es­pe­cially oc­cupy it­self with an in­quiry in­to the num­ber of or­ders made and the num­ber of con­cerned per­son af­fected, and the res­ults of such meas­ures. Fur­ther­more, prac­tic­al and leg­al prob­lems of ap­plic­a­tion shall be ex­amined, in­clud­ing their re­la­tion­ship to the leg­al reg­u­la­tions. Fi­nally, it is aim of this in­vest­ig­a­tion to sub­ject the in­clu­sion of tele­com­mu­nic­a­tion busi­nesses in crim­in­al pro­ceed­ings to a the­or­et­ic­al and em­pir­ic­al ana­lys­is. In so do­ing, the con­sequences for tele­com­mu­nic­a­tion pro­viders (for ex­ample, in the form of costs) will also form part of the in­vest­ig­a­tion re­gard­ing the in­ter­ac­tion between the private sec­tor and pro­sec­ut­ing au­thor­it­ies.

Meth­od­o­logy:

The com­plete pro­ject con­sists of three chro­no­lo­gic­ally ordered mod­ules that are to be ex­ecuted in three phases. In the first phase of the study, a na­tion­wide sur­vey of pro­sec­ut­ing at­tor­neys will take place on the basis of stand­ard­ized ques­tion­naires. This mod­ule should con­trib­ute to the ex­plor­a­tion of the ex­per­i­ences of pro­sec­ut­ing at­tor­neys (dur­ing 2005) with the ap­plic­a­tion and leg­al ar­range­ments con­cern­ing ap­plic­a­tions to mon­it­or tele­com­mu­nic­a­tion traffic data, as well as their opin­ions and at­ti­tudes to­wards the reg­u­la­tions and their prac­tic­al ap­plic­a­tion. The res­ults will be fur­ther ex­pan­ded in the second phase of the pro­ject through an ana­lys­is of crim­in­al files. This file ana­lys­is will ex­tend to the four fed­er­al states of Baden-Württem­berg, North Rhine-West­phalia, Mecklen­burg-West­ern Pom­er­a­nia and Ber­lin. 150 files from each state will be in­cluded. The file in­quiry mod­ule will there­fore in­clude 600 crim­in­al files. The peri­od of ex­am­in­a­tion refers to the years 2003 and 2004. Po­lice and justice au­thor­it­ies do not re­cord the rel­ev­ant cases sep­ar­ately, so ac­cord­ingly, they must be iden­ti­fied through the tele­com­mu­nic­a­tion pro­viders. As was proven through pre­par­at­ory en­quir­ies, the tele­com­mu­nic­a­tion pro­viders have such data bases at their dis­pos­al. These are gen­er­ated in the course of the in­tern­al hand­ling of cases, es­pe­cially in the con­text of cost re­cord­ing and in­voicing. At all pro­viders ba­sic data can be ac­cessed, which, at the very least, con­tains the file ref­er­ence as well as the place and the re­spons­ible cir­cuit that re­ques­ted the data. These de­tails are ad­equate to un­equi­voc­ally identi­fy the cases, to draw a sample of the cor­res­pond­ing files, and to be able to or­der these from the Min­istry of Justice. Al­though the doc­u­ment­a­tion prin­ciples and re­ten­tion peri­ods of the dif­fer­ent pro­viders vary, but cases from the years 2003 and 2004 are com­pletely avail­able. Thus, the cases from these two years can be con­sist­ently re­cor­ded and used to form a basis for the draw­ing of a rep­res­ent­at­ive sample. The find­ings from the sur­vey and the res­ults of the file ana­lys­is will con­sti­tute the basis for the deep­en­ing ex­pert in­ter­views, which will be ex­ecuted in the third phase of the study. In this fi­nal phase, tele­com­mu­nic­a­tion pro­viders, judges, po­lice of­fi­cials, pro­sec­u­tion and de­fence at­tor­neys, and data pro­tec­tion of­ficers will all be ques­tioned. These in­ter­views should de­term­ine the dif­fer­ent ef­fects of the present reg­u­la­tions on the vari­ous work areas and the per­son­al ex­per­i­ences of those in­volved. Sug­ges­tions for im­prove­ment from the in­ter­viewed prac­ti­tion­ers will also be gauged. Moreover, the prac­ti­tion­ers will be asked in de­tail for their as­sess­ments, at­ti­tudes, and cri­ti­cisms of the norms in gen­er­al and their ap­plic­a­tion in prac­tice. Fur­ther­more, the in­ter­views of­fer an op­por­tun­ity to ex­am­ine the ob­ser­va­tions from the first in­vest­ig­a­tion phases and to deep­en the pre­vi­ous find­ings.

State of the Pro­ject:

The pro­ject is presently in its fi­nal phase. The afore­men­tioned ques­tion­naires have been eval­u­ated and the in­ter­views, car­ried out in the middle of Decem­ber, have also been sum­mar­ized. The res­ults of the file ana­lys­is are cur­rently be­ing as­sessed.

Fin­an­cial Sup­port:

The pro­ject is be­ing car­ried out with fin­an­cial sup­port from the Ger­man Fed­er­al Min­istry of Justice.