Berlin court found that the interception represented a severe encroachment of individuals’ right to privacy. Even if the interception operation was legal under French law, using the data in German criminal proceedings was not justified, according to regional court judge Behrend Reinhard.
“The Regional Court considers the surveillance of 30,000 EncroChat users to be incompatible with the principle of proportionality in the strict sense. This means that the measures were unlawful,” he wrote in a 22-page judgment.
German police received daily downloads of data from the phones from Europol between 3 April 2020 until the operation against EncroChat was discontinued on 28 June 2020.
In Lille, a French court approved a European Investigation Order issued by the German prosecutors on 13 June 2020, authorizing German courts to use EncroChat data in criminal proceedings.
Under EU law, member states must notify the German authorities before intercepting people’s telecommunications on German territory.
This includes providing all the necessary information, including a description of the interception operation to assess whether the interception would be authorized under German law and whether the material can be used in legal proceedings.
“According to the information that has become known so far, it is to be assumed that there was no such request by the French state and no review by the competent Germany authority in this case,” said Reinhard.
The court found no concrete suspicion that criminal offenses had been carried out by the users of EncroChat phones targeted.
“At the time of the order and implementation, there was no suspicion of a crime against the users of the terminal equipment [handsets] that would have justified the surveillance,” the judgment said.
Criminals often prefer communications channels that are difficult to monitor, such as Voice over IP telephones or the secure Tor browser.
But the mere use of an encrypted phone, even one with a high level of security, is not in itself a reason to conclude criminal conduct had taken place.
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