Several surveillance practices by the police in Austria are not compatible with the Constitution. This was decided by the Constitutional Court in Vienna on 11 December 2019. Inadmissible according to the court covert vehicle and driver monitoring via video, the use of route radar data by security authorities, the use of state trojans on devices of suspects and the intrusion into homes for the installation of surveillance programs.
The former Austrian government coalition of ÖVP and FPÖ had decided on the regulations in 2018. On the other hand, MPs from the SPÖ and Neos complained. The introduction of the Federal Trojan horse was according to media reports scheduled for April 2020. This should allow, for example, encrypted communication via Whatsapp or other messenger services to be monitored.
According to the court, the covert capture and storage of data to identify vehicles and drivers "Disproportionate", That alone is the reason "because the investigative measure (also) may be used to prosecute and defend against intentional acts of the slightest financial crime",
The evaluation of data from so-called section radar (Section Control) by security authorities injured in the judgment, the right to privacy and respect for privacy. The scheme can not guarantee "that the stored data will only be processed by the security authorities if this serves to prosecute and investigate correspondingly serious crimes",
"Special intensity" in Trojans
In the use of spyware on the terminals of suspects, the Constitutional Court sees a grave interference with privacy. This form of surveillance comes one "special intensity" to. This applies all the more "when the synopsis of the data obtained in the course of the covert and ongoing monitoring of a computer system also made it possible to draw conclusions about the user's personal preferences, inclinations, orientation and attitude, as well as the lifestyle of the user",
The secret intrusion into homes and the overcoming of security measures to install the surveillance programs violates the inviolability of the house right, according to the court. This regulation also authorizes the execution of searches without the person concerned having knowledge of them. "However, this contradicts the House Law 1862, according to which house searches, which are carried out without the knowledge of the person concerned, this afterwards – within the next 24 hours – to communicate", the court said.
The privacy organization Epicenter.works welcomed the decision of the court. "The fact that the state is not allowed to promote security gaps is justified, because the use of the Trojan horse would not only have weakened IT security and would have stood in the way of the paradigm of privacy-by-design.", said the organization. Installing the programs "without a court order would be a catastrophic sign for the legal certainty of a proof procedure",