D: BGH [German Federal Court of Justice] on email monitoring

With a decision that was surprising in its content, the German Federal Court of Justice (BGH) has considerably reduced the requirements concerning email monitoring - a move that has far-reaching consequences for providers of email and similar communication services.

In the course of a preliminary investigation, all the emails - whether read or unread - stored in a provider's email mailbox were seized and recorded. The defendant appealed, complaining that the preconditions for such a seizure pursuant to section 100a StPO [Code of Criminal Procedure] had not been satisfied.

The BGH rejected this view in its decision of March 31, 2009 (file ref. 1 StR 76/09). Email monitoring did not have to satisfy the strict preconditions of telecommunications monitoring pursuant to section 100a StPO (as LG [District Court] Hamburg had, however, stated in its decision of January 8, 2008, file reference 619 Qs 1/08). In fact, the regulations concerning the seizure of letters and telegrams (section 99 StPO) were applicable. Emails stored in the mailbox in the email provider's database, whatever the storage period, did not involve a telecommunications process (any longer).

Taking into account present-day communication behavior, the seizure was comparable to the seizure of other communications that are (at least temporarily) in the hands of a mail or telecommunication service provider. As an example, the BGH mentions a telegram conveyed via a telecommunication channel. Emails received, stored or temporarily stored in the provider's database could therefore be seized without specific legal regulation under the conditions of section 99 StPO. The protection ensuring constitutional rights was safeguarded by the requirement of a judicial order. This order could also be enforced through administrative measures or means of coercion.

Since the present decision applies exclusively to emails stored in providers' databases, it has far-reaching consequences for these companies. The more moderate the requirements for the seizure of emails, the more often such requests are to be expected on the part of the criminal prosecutors. The content of the BGH arguments is perplexing: while an email is stored in the provider's database, it suddenly transforms from being a telecommunication message to a letter, without having changed in its nature. But since emails are held in storage far more frequently than actually being transmitted, section 100a StPO is virtually thrust aside. At the same time, the high requirements of this legal provision are artificially evaded.