On February 16th, 2023, the First Senate of the Federal Constitutional Court arrived at the decision that Land Hesse’s and Hambourg’s legislation “authorising the police to process stored personal data through automated data analysis or automated data interpretation” is unconstitutional.
The decision mainly focuses on provision §25a(1) first alternative of the Security and Public Order Act for the Land Hesse (Hessisches Gesetz über die öffentliche Sicherheit und Ordnung – HSOG) and provision §49(1) first alternative of the Act on Data Processing by the Police for the Land Hamburg (Hamburgisches Gesetz über die Datenverarbeitung der Polizei – HmbPolDVG), which essentially have the same wording.
According to these provisions, the police is authorised to “process stored personal data through automated data analysis (Hesse) or automated data interpretation (Hamburg), subject to a case-by-case assessment, in order to prevent serious criminal acts within the meaning of § 100a(2) of the Code of Criminal Procedure (Strafprozessordnung – StPO) (first alternative) or to avert dangers to certain legal interests (second alternative)”.
The question that the Federal Court had to address concerned whether the automated analysis or interpretation of data, beyond the specific investigation that initially prompted the data collection measure, is permissible for the prevention of future crimes. Founded on respect of the principle of proportionally and in particular, the severity of the interference with the data initially collected, the Federal Court held, among other things, that both provisions – §25a(1) and §49(1) – have “virtually no restrictions on the type and amount of the data that can be used for data analysis or interpretation”; they do not prohibit “the use of very far-reaching methods of automated data analysis and interpretation” and “the challenged powers are also not sufficiently circumscribed by the fact that the technology for unlimited data analysis is not currently available”.
§49(1) first alternative of the Hamburg Act on Data Processing by the Police is considered void, while §25a(1) first alternative of the Hesse Security and Public Order Act will continue to apply, with some restrictions, “until new provisions have been enacted, and in any case no later than 30 September 2023”.
The use of predictive policing algorithms raises concern about the possible biases that may occur. On December 8th, 2022, the European Union Agency for Fundamental Rights (FRA) published a report on predictive policing and offensive speech detection algorithm biases. The issue of algorithmic biases is critical when regulating the use of AI-based systems.