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20 June 2009, 01:18

Appeal to constitutional court over 'hacker clauses' inadmissible

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The German Federal Constitutional Court has ruled that legislation criminalising the use of hacking software, which has now been in force for two years, is compatible with the German constitution. The court has ruled a complaint lodged by an IT company, an academic and a computer user, inadmissible. The appeal concerned two clauses which criminalise the production and distribution of programs for spying on and intercepting data. The plaintiffs believed that the wording of the legislation placed them at risk of prosecution because they use hacking programs, albeit with no criminal intent.

The Karlsruhe-based court considered that there had been no infringement of constitutional rights. According to the court, the legislation applies only to programs developed with illegal intent. According to a judgement released on Friday, the fact that a program can be used to carry out hacking attacks does not, of itself, make its use criminal (file number: 2 BvR 2233/07, 1151/08 and 1524/08, judgement of 18th May 2009).

Clauses 202a and 202a of the German Criminal Code, which implemented the Council of Europe's Convention on Cybercrime, are intended to criminalise certain actions preparatory to committing criminal hacking attacks and are consequently fairly broad in scope. In a lengthy judgement, a chamber of the Second Senate clarified that the intention of the Bundestag in framing these clauses had been to expressly include only such software as was produced for a criminal purpose. Dual-use products, which could be used in the service of computer security, but were also capable of being used for carrying out hacking attacks are, according to the court, not covered by the legislation, because they serve a legal purpose. The court also noted that persons using such programs for legal activities would also lack the intent required for their actions to be criminal.

In March, the Hanover public prosecutor's office dropped a case against Jürgen Seeger, editor in chief of IT magazine iX, The H's associated publication in Germany. Seeger had reported himself to the police in late 2008 for publishing security software on the DVD included with the iX special "Staying safe online".

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