On 5 February 2019, the 'Bundesverfassungsgericht' (Federal Constitutional Court) announced that the Bavarian Police Task Act is unconstitutional insofar as it allows the police, without further restriction, to automatically record the license plates of all passing motor vehicles by means of a license plate reading system, to store them briefly together with information on location, date, time and direction of travel, and to compare them with license plates from the search database. Experts from the "Forum Privatheit" research association have analyzed the ruling and comment on its effects.
Press Release: Automated license plate checks only within narrow constitutional limits12. February 2019
BVerfG strengthens protection of fundamental rights and creates legal certainty
Although the BVerfG had already determined in 2008 that the monitoring instrument of vehicle license plate scanning may only be used to protect important legal interests and for a specific occasion at limited locations and limited times, the federal states of Bavaria, Baden-Württemberg and Hesse included these controls without these restrictions in the catalogue of normal police instruments and made extensive use of them.
On the other hand, a citizen residing in Bavaria and Austria complained that he feared that he would be repeatedly monitored on his travels between the two residences and that he would be registered as a wanted person due to the high false recognition rate of the license plate reading systems and suffer disadvantages. The Administrative Court of Munich, the Administrative Court of Bavaria and the Federal Administrative Court had dismissed the action, inter alia because the mere registration of the number plate did not constitute an encroachment on fundamental rights. In its decision of 18 December 2018, the BVerfG overturned these judgments and declared the corresponding provision in the Bavarian Police Duties Act partially unconstitutional.
Federal Constitutional Court strengthens fundamental right to informational self-determination
"The resolution of the BVerfG states with great clarity that the use of the monitoring instrument of automated license plate controls is limited to certain occasions and to avert a concrete danger to legal interests of considerable weight and thus strengthens the fundamental right to informational self-determination and data protection", states Prof. Dr. Alexander Roßnagel, speaker of the research association "Forum Privatheit" and Professor of Environmental and Technical Law at the University of Kassel. "The broad monitoring of road traffic by automated license plate checks is not permitted".
The court clearly states that the registration of license plates already encroaches on the fundamental right to informational self-determination, regardless of whether a hit can be determined. The Federal Constitutional Court (BVerfG) had a different view of this in its decision on license plate scanning of 8 March 2008. At that time, it decided that the mere recording and immediate deletion of the data as soon as it had been established that there was no hit in the comparison with a search file did not constitute an encroachment on fundamental rights. Many regulations in the law of the police and intelligence services have taken advantage of this finding. The BVerfG has now moved away from this statement and already sees the collection of data as an unauthorised encroachment on fundamental rights. If a surveillance system records people, it does not only interfere with their freedom with regard to the associated consequences, but already through the recording. "It is part of the freedom of the community that citizens can in principle move around without having to be registered at will by the state, have to account for their integrity and be exposed to the feeling of being constantly monitored" - according to the BVerfG.
Such controls are only admissible under two conditions. On the one hand, there must be an objectively defined and limited reason for this. "The implementation of inspections at any time and at any place is fundamentally incompatible with the principle of the rule of law," according to the BVerfG. On the other hand, they must serve to protect important legal interests or public interests. These include, for example, the body, life and freedom of the person and the existence and security of the Federation and the Länder. Since the Bavarian Police Task Act does not comply with both requirements, the BVerfG has declared the excessively far-reaching regulations to be unconstitutional.
Impact also on the monitoring of diesel driving bans
This assessment applies not only to the Bavarian Police Task Act, but also to comparable regulations in Baden-Württemberg and Hesse. The statement that an encroachment on fundamental rights already exists through the mere collection of surveillance data has consequences for many police and intelligence surveillance methods, because they previously assumed that an encroachment on fundamental rights only begins with the storage as a hit. This realization also forces the adaptation of many permissions for surveillance. "In contrast to other European countries, Germany thus places data protection above the still unclear benefits of very comprehensive license plate recognition," praises forum privacy expert Dr. Michael Friedewald of Fraunhofer ISI.
The ruling of the BVerfG also has an impact on the intention to enforce driving bans for older diesel vehicles through automated license plate recognition and comparison with the Federal Motor Vehicle Register. "Although such automated license plate checks only take place at the entrance to environmental zones or roads closed to diesel vehicles, they do not serve to avert a danger to legal assets such as life, limb and freedom of the person and the existence and safety of the Federal Government and the Länder, but rather to prevent or prosecute administrative offences - they are in no way proportionate," summarizes Roßnagel.
In the BMBF-funded 'Forum Privatheit', experts from seven scientific institutions deal with issues relating to the protection of privacy in an interdisciplinary, critical and independent manner. The project is coordinated by Fraunhofer ISI. Other partners are Fraunhofer SIT, the University of Duisburg-Essen, the Scientific Centre for Information Technology Design (ITeG) at the University of Kassel, Eberhard Karls University Tübingen, Ludwig Maximilian University Munich and the Independent State Centre for Data Protection Schleswig-Holstein. The BMBF supports the Forum Privatheit in order to stimulate public discourse on the topics of privacy and data protection.
Prof. Dr. Alexander Roßnagel
University of Kassel
Project Group Constitutional Technology Design (provet) at the Scientific Centre for Information Technology Design (ITeG)
Tel: 0561/804-3130 oder 2874
Project Coordination „Forum Privatheit“:
Dr. Michael Friedewald
Fraunhofer-Institute for Systems and Innovation Research ISI
Competence Center New Technologies
Tel.: 0721 6809-146
Press und Communication „Forum Privatheit“:
Barbara Ferrarese, M.A.
Fraunhofer-Institute for Systems and Innovation Research ISI
Tel.: 0721 6809-678