Confiscation of Facebook Accounts in Criminal Proceedings

Social networks enjoy great popularity among online users. In Germany, more than 50 percent of all users surf on social networks on a weekly basis. In more than 50 percent the social network of choice is Facebook. But Facebook not only has the highest amount of users. They are also the most active, show the highest rate of general online activity (e.g. online shopping) and thus have the highest e-commerce-potential. Therefore, there has not been a way around Facebook for online shops for quite some time (more statistics on Facebook can be found here).

Now, there no longer seems to be a way around Facebook for state institutions, especially law enforcement agencies, neither.

Last year, the Local Court of Reutlingen ordered the confiscation of an accused’s Facebook-account. All messages and chats (read or unread and drafts thereof) were to be confiscated, as well as all attachments, pictures and all the data stored by Facebook including all the data marked “Messages”, “Friends”, “Notes”, “Chats” and “E-Mails”, regardless of whether or not this data had been “deleted” by the user (more information on the deletion of data on Facebook can be found here. According to the court, information on the accused’s involvement in several housebreakings could be gathered in particular from messages and chats that had been deleted by the accused, but were still being stored by Facebook.

The court applied sec. 99 of the Code of Criminal Procedure (StPO) by analogy. Directly applied, this section stipulates the conditions, under which mail and telegrams that a postal operator has possession of can be confiscated. The local court held that the same conditions had to be met, when a Facebook-account was to be confiscated, as messages and chats could no longer be considered telecommunication, once they were (however shortly) stored by Facebook, but rather resembled mail or telegrams in possession of a postal operator.

With this line of reasoning, the Federal High Court (Bundesgerichtshof, BGH) held in 2009 that sec. 99 of the Code of Criminal Procedure (StPO) was the legal basis for confiscating e-mails stored by an e-mail-provider. Thus, the local court’s decision consistently carries forward the jurisdiction in regard to electronic communications data that cannot be controlled by the user alone. It also aligns with the 2009 Federal Constitutional Court’s (Bundesverfassungsgericht, BVerfG) decision regarding the confiscation of e-mail-accounts, although it held sec. 94 ff. of the Code of Criminal Procedures (StPO) to be applicable in the case laid before it. However, these sections only apply, when an e-mail-account is openly confiscated and searched in a single action, while sec. 99 applies, when e-mail-accounts are secretly “watched” for a longer period of time. The latter was found to be the case with regard to the confiscation of Facebook-accounts by the local court of Reutlingen.

As any other action taken in criminal prosecution, the confiscation of a Facebook-account needs to be proportional. According to the 2009 decision of the Federal Constitutional Court the proportionality depends on the mail-account-user’s possibility to control the deletion of the stored data. That dependence, however, was denied by the local court of Reutlingen. Because of public discussions on Facebook’s data (collection) policy, users were found to know that data is being stored on a large scale. Under these conditions, they still decided voluntarily to sign up on Facebook and thus accept not to be in charge of the information stored about them.

Regardless of the legal questions, the confiscation of Facebook-accounts might cause de-facto-difficulties for the German courts: The local court of Reutlingen first delivered its decision to Facebook Germany that could not provide the data, as they do not have access. The same is true about Facebook Europe that Reutlingen’s judge turned to by request of legal assistance to Ireland. As Facebook stores data in the California, information about users can only be accessed via request for legal assistance to the USA. The costs for that will, however, probably be too high for average criminal procedures. In the local court of Reutlingen’s case the accused voluntarily granted access to “his” data, after all (for more information see here). Therefore, it remains to be see, how confiscations of Facebook-accounts will be executed in the future.

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