Regional court: License plate scanning in Brandenburg was illegal

Brandenburg’s longstanding practice of using license plate scanners in “recording mode” to store all vehicle movements on the state’s motorways was illegal. The regional court in Frankfurt (Oder) decided at the request of the car driver Marko Tittel, a member of the Pirate Party, that there was no legal basis for the corresponding orders from the public prosecutor’s office. The system operated between 2017 and the end of June 2021.

Significant encroachment on fundamental rights

According to its recently published judgment (Az.: 22 Qs 40/19) of July 22, the 2nd Criminal Chamber qualifies the operation of the automatic license plate recognition system Kesy and the data retention that has taken place as a “weighty encroachment on fundamental rights”. The number plate on the back was digitized and an enlarged image of it was stored in a central database together with a recording of the entire rear view of each passing vehicle together with the location, date, time and direction of travel.

The judges rate this procedure as particularly serious because the authorities would have kept this information indefinitely as long as the measure was “active” in any investigation against any person. As a result, over the years “without transparent limitations” imposed by the legislature, the movement behavior of large parts of the population’s vehicles who traveled to the site could be “accurately traced”.

According to the chamber, this is made more difficult by the fact that the measures were carried out covertly and without corresponding notifications. Those affected should not have been guilty of any misconduct, nor was there any other reason for the surveillance to be necessary. In investigations in public space with such a wide range, “a feeling of being monitored can arise”. The entire instrument interferes “in a significant way with the right to informational self-determination”.

Comprehensive collection prohibited

In view of the detection of large sections of the population and the lack of cause for automatic license plate scanning, “a comprehensive detection of vehicles is fundamentally prohibited,” emphasizes the court. Because of the enormous volume of data that can be stored and researched in a uniform pool over the long term and the resulting possibility of creating movement profiles, ensuring that the recorded values ​​are handled in a sufficiently clear and secure manner is “of enormous importance”. Risks of misuse must also be limited. A special law would therefore have been necessary.

Tittel welcomes the fundamental decision: “An indiscriminate storage of every trip on the Autobahn” creates transparent drivers and exposes them to constant monitoring pressure. In addition, there is the “risk of false suspicion or abusive tracking of personal life by unauthorized persons”. He doesn’t want to live in a country “where every movement can be recorded and used against me”.

However, the plaintiff had to appeal to the Brandenburg constitutional court for the verdict, as the district court in Frankfurt (Oder) initially dismissed his claim as inadmissible. Reason: He could not prove his direct concern. The district court dismissed the complaint and a subsequent hearing complaint. Only after the successful constitutional complaint was the different decision made.

Unnecessary costs

According to the final judgment, the costs of the proceedings and the expenses of the complainant are borne by the state treasury. The Chamber complained that the renewed review would not have been necessary if the decision “had been made in this form” before the Constitutional Court became involved. Previously, the state data protection officer, Dagmar Hartge, had declared the Kesy operation, which had won a Big Brother Award, to be illegal and ordered corrections.

The Bundestag has now created a uniform legal basis for the use of automated number plate reading systems in public traffic by the police, customs and other investigative authorities. A search mode can be activated with this. The system checks whether the recorded number plate is listed in databases with vehicles that have been reported stolen, for example. If there is no hit, the recording will be deleted immediately in accordance with judgments of the Federal Constitutional Court. In the course of the legislative process, the Bundesrat and Brandenburg in particular pushed in vain for the admissibility of a more extensive storage option.

As part of the resolution of the federal law, Brandenburg stopped the mass registration of vehicles without suspicion in the middle of last year. The state’s interior minister, Michael Stübgen (CDU), is sticking to the reactivation of the recording mode on the basis of his own regulation. According to media reports, the Federal Criminal Police Office has also used the particularly controversial storage method in the past.

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