E: Criminal investigation proceedings into credit card data

Category: Nachrichten
By: O. Gönner - 2B Advice GmbH - the privacy benchmark

In its ruling of 02/17/2009, the Federal Constitutional Court reached the decision that the collective retrieval of credit card data by credit card companies is, in itself, not an intrusion into the basic right to informational self-determination.

In the constitutional complaint in question, credit card companies were requested to analyze the search criteria typical for the purchase of child pornography, namely transactions processed, time frame, recipient bank and merchant ID. These investigations were only carried out automatically by the credit card companies, and not passed on to the state prosecutor for want of consent.

 

The Court was convinced that the practice did not constitute a dragnet investigation as defined in § 98a of the Code of Criminal Procedure (StPO), since the data comparison was carried out by the credit card companies. The key feature of a dragnet investigation is the comparison of individual pieces of data from several locations, and linking these together to create a personality profile. The particular prerequisites for a dragnet investigation take into account the intensity of the invasion of the measures for the persons affected. Unlike in a dragnet investigation, the pieces of data in this particular case were investigated for particular traces of criminal activity. Thus, no new personality profile was created.

 

For an invasion to be deemed to have occurred, it is not sufficient for the data to have been included in an automatic search within a company, since the data are anonymously and untraceably extracted from the search and were not passed on to the authorities in connection with any criminal proceedings.

 

The retrieval of the data affects only those credit card holders who fulfil the criteria in their right to data privacy. The invasion is, however, justified on the basis of the authorization in § 161 of the Code of Criminal Procedure (StPO), since there is a suspicion that a crime may have been committed on the basis of concrete circumstances.

 

The Federal Constitutional Court reaches the conclusion that considering the aim of prosecuting someone who is in possession of child pornography, it is of less consequence than the weight of the invasion into the right to informational self-determination that is connected with the retrieval of credit card data.

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