Definition and Principles of the Use of Technical Means
Der Use of Technical Means denotes, in a legal context, the use of technical devices or procedures for the purpose of obtaining, monitoring, or processing information. This term is particularly applied in areas such as criminal prosecution, threat prevention, intelligence services, data protection, and employment law. Over the years, legislation and court rulings have established clear frameworks and restrictions to balance security interests and the protection of individual fundamental rights—in particular, the right to informational self-determination.
Application in Criminal Procedure Law
Telecommunications Surveillance (§ 100a StPO)
Die Telecommunications Surveillance is one of the most prominent forms of the use of technical means in criminal proceedings. It enables investigative authorities to monitor and record communications content (e.g., phone calls or Internet communications). This requires serious criminal offenses, which are exhaustively listed in the law. A judicial order is generally required, though exceptions may apply in cases of imminent danger. The goal is to collect evidence without neglecting the principle of proportionality.
Acoustic and Optical Home Surveillance (§ 100c StPO)
The use of technical means for residential surveillance, colloquially known as the “major eavesdropping attack,” allows, under strict conditions, the monitoring of conversations and movements within private premises. Such an order may only be issued for particularly serious offenses and after careful consideration of the severity of the intrusion. Here too, a judicial order is generally mandatory.
Use of Undercover Investigators and Surveillance (§ 100e, § 163f StPO)
Technical means are also used in the deployment of undercover investigators or surveillance operations. This includes GPS trackers, beacons, or video recordings of public places. The legal admissibility is based on the principle of proportionality and the protection of the affected individuals’ personal rights.
Application in Police Law and for Threat Prevention
Threat Prevention and Precaution
As part of general threat prevention, the police and regulatory authorities may use technical means to prevent criminal acts or administrative offenses. This includes, for example, audio and video recordings in public places, automatic license plate recognition (AKLS), or the use of drones at large events. The legal basis is provided by the police laws of the federal states as well as the Federal Criminal Police Office Act (BKAG), with the fundamental rights of third parties always to be considered.
Thresholds for Interference and Legal Protection
Prior to the use of technical surveillance, statutory authorization is required. Affected individuals have the right to legal remedy and notification, as soon as this no longer endangers the purpose of the investigation. Judicial review must be ensured.
Use of Technical Means by Intelligence Services
Legal Bases and Powers
Federal and state intelligence services are authorized, under certain legal conditions, to use technical means for the collection of intelligence information. These include, for example, telecommunications reconnaissance, surveillance measures, or tapping into devices and IT systems. The legal bases derive, for instance, from the Act on the Federal Intelligence Service (BND Act) and the Act on Cooperation between the Federation and the States in Matters of the Protection of the Constitution (Protection of the Constitution Act).
Control and Supervision
The use of technical means by intelligence services is subject to parliamentary oversight (Parliamentary Control Panel, G10 Commission). High standards are imposed on purpose limitation, data security, and the deletion of collected data.
Employment Law and the Use of Technical Means at the Workplace
Surveillance Measures in Businesses
Technical means are used in employment relationships, for example in access control systems, video surveillance, time tracking, or monitoring of Internet and email usage. The use requires data protection legitimacy and must not disproportionately infringe on the personal rights of employees. Works agreements or co-determination mechanisms according to the Works Constitution Act are often mandatory prerequisites.
Data Protection Law Aspects
According to the General Data Protection Regulation (GDPR) as well as the Federal Data Protection Act (BDSG), personal data may only be processed under strict conditions. This applies equally to the collection, use, and storage through the use of technical means.
Data Protection Law Framework Conditions
Requirements and Admissibility
The use of technical means for monitoring, data collection, or processing generally requires a legal authorization, a legitimate interest, or the express consent of the data subject. The type and scope of data processing must be designed transparently; violations may lead to supervisory measures and claims for damages. In the case of particularly sensitive data, heightened protection requirements apply (see Art. 9 GDPR).
Rights of Data Subjects
Data subjects have comprehensive rights to access, erasure, rectification, or restriction of the processing of their data, provided that personal data are processed through the use of technical means.
Technical Means: Definition, Examples, and Types
Term Distinction
Technical means are all devices, systems, or software that can be used to obtain, transmit, store, or evaluate information—automatically, semi-automatically, or manually. These include, for example:
- Audio recording devices (microphones, bugs)
- Video surveillance systems
- Surveillance software (state trojan)
- GPS trackers
- Telecommunications surveillance devices
- IT forensic tools
Open vs. Covert Surveillance
A legally significant distinction is drawn between open and covert use of technical means. While open measures (e.g., cameras with warning signs) are less intrusive, covert surveillance is subject to particularly strict requirements regarding suitability, necessity, and proportionality.
Constitutional Assessment
Protection of Fundamental Rights
The use of technical means regularly interferes with fundamental rights, in particular the right to informational self-determination (Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG), the secrecy of telecommunications (Art. 10 GG), as well as the inviolability of the home (Art. 13 GG). The legislature is obliged to safeguard these fundamental rights through specific regulations, to limit intervention measures, and to ensure independent oversight.
Proportionality and Transparency
Every use of technical means is subject to the principle of proportionality. The measure must be suitable, necessary, and appropriate. In addition, the Federal Constitutional Court requires that automated and covert technical surveillance measures are legitimized by clear legal bases, strictly limited, and subject to effective oversight.
Literature and Case Law
The term is discussed in detail in specialist publications. The case law, especially of the Federal Constitutional Court and the Federal Court of Justice, sets standards regarding admissibility, transparency, and control of technical means in the area of tension between security and civil liberties.
See also:
- Data Protection
- Fundamental Rights
- Telecommunications Surveillance
- Covert Investigations
- Threat Prevention
Sources (Selection):
- Code of Criminal Procedure (StPO)
- State Police Acts
- Federal Data Protection Act (BDSG)
- General Data Protection Regulation (GDPR)
- Federal Constitutional Court decisions on the “major eavesdropping attack” and protection of fundamental rights
Frequently Asked Questions
What legal requirements must be met for the use of technical means in employment relationships?
For the use of technical means in employment relationships, such as surveillance cameras, GPS trackers, keyloggers, or biometric access systems, strict legal frameworks apply in Germany. Primarily, the general right to privacy of employees under Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG and the data protection provisions, notably the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG), are decisive. The employer may only deploy technical means for monitoring or control if there is a legal basis, a legitimate interest, and no overriding legitimate interests of the employees in need of protection. The principle of proportionality also often has to be observed. Where surveillance systems automate the collection and processing of data, a data protection impact assessment is regularly required. In companies with works councils, their co-determination rights must also be observed (§ 87 Para. 1 No. 6 BetrVG), meaning that technical surveillance means may only be used with the works council’s approval.
Must the employer involve the works council when using technical means?
Yes, the works council has a mandatory co-determination right concerning the use of technical means for monitoring or controlling the behavior or performance of employees, as stipulated by § 87 Para. 1 No. 6 Works Constitution Act (BetrVG). This co-determination right concerns all forms of technical surveillance, regardless of whether these are open or covert or even if they are intended for other purposes but could objectively be used for behavior or performance monitoring. The right of participation continues to exist even if the technical means used are provided for other purposes but would objectively permit monitoring of employee behavior or performance. Without the works council’s consent, the use of such technical means is inadmissible; violations may render measures ineffective and give rise to injunctive relief claims.
To what extent is the collection of personal data by technical means permissible?
The collection, processing, and use of personal data by technical means is generally only permissible if it is necessary for the establishment, implementation, or termination of the employment relationship (§ 26 Para. 1 BDSG; Art. 6 Para. 1 lit. b GDPR). Employees must also be transparently informed about the type, scope, and purpose of the data collection (information obligations under Art. 13, 14 GDPR). Data processing based on consent is possible, but the voluntariness of consent in an employment relationship is subject to strict requirements. Further restrictions follow from the principles of data minimization and purpose limitation. Permissible collection also requires appropriate technical and organizational measures to guarantee data security.
May technical means be used for covert surveillance?
The covert use of technical monitoring means, such as secret video surveillance or keyloggers, is only permitted within narrow legal limits. According to case law of the Federal Labour Court (BAG) and the Federal Data Protection Act, covert surveillance is only permissible if there is a concrete, substantiated suspicion of a serious violation of duty, no milder means are available, and the measure overall is proportionate. Blanket, indiscriminate, or area-wide covert surveillance is not allowed. Furthermore, the principle of proportionality must be strictly examined and maintained. Infringements risk not only the inadmissibility of the information gathered but may also lead to supervisory measures and substantial fines.
What documentation and transparency obligations exist regarding the use of technical means?
Employers are legally obligated to carefully document the processing of personal data within the context of technical means (Art. 30 GDPR) and to maintain full transparency toward employees. This includes, in particular, fulfilling information obligations (Art. 13, 14 GDPR), documenting technical and organizational measures, and keeping a record of processing activities. Where there is risk potential for the rights and freedoms of employees, a data protection impact assessment (§ 35 BDSG, Art. 35 GDPR) must also be conducted. Breaches of these obligations can result in regulatory procedures and fines.
What are the consequences of the unlawful use of technical means in employment relationships?
Unlawful use of technical means, such as without the necessary approval of the works council, without sufficient legal basis, or in breach of data protection provisions, has far-reaching employment law and data protection consequences. On the one hand, findings gained from unlawful surveillance may be inadmissible in court. Employees may assert claims for injunctive relief and possibly even damages against the employer (Art. 82 GDPR, § 83 BDSG). Supervisory authorities may also impose fines, issue orders, and demand deletion of unlawfully collected data. In cases of serious violations, there is also a risk of reputational damage for the employer.
What special considerations apply to special categories of personal data when using technical means?
When using technical means that record special categories of personal data within the meaning of Art. 9 GDPR, such as biometric features (e.g., fingerprint scanners), particularly strict legal requirements apply. The processing of such data is generally prohibited unless there is express consent from the data subject or a specific legal authorization. The employer must implement enhanced safeguards and conduct particularly careful data protection impact assessments. The voluntariness of consent is construed restrictively in employment law due to the dependent relationship. High requirements apply with regard to data minimization, purpose limitation, transparency, and security. Any violation may have serious legal consequences, including heavy fines.
