Faeser wants to avoid a sentence against cell phone searches on refugees

Federal Minister of the Interior Nancy Faeser wants to use a legal trick to undermine the core content of the judgment of the Federal Administrative Court (BVerwG) in February, according to which the common practice of searching cell phones in refugees is illegal. This emerges from the discussion draft on “improving repatriation” that the SPD politician presented last week. According to this, the Federal Office for Migration and Refugees (BAMF) and other immigration authorities should initially be allowed to read data carriers – for example after issuing a password or with the help of biometric features of the person concerned – if the foreigner is not in possession of a valid passport or other identification document.

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Evaluation of data carriers

According to the draft, the read data should be evaluated later if this is necessary to determine the identity and nationality of the foreigner and the purpose of the measure cannot be achieved by more lenient means. Findings from the core area of ​​private life should be avoided. They could not be exploited. In addition, the data carriers should only be evaluated by a staff member who is qualified to hold judicial office.

The Federal Ministry of the Interior (BMI) explains in the justification for the planned Paragraph 15a of the Asylum Act that “the change serves to specify the situation”, which has become necessary due to the decision of the Federal Administrative Court. It is crucial to keep the procedure for the BAMF practicable. “In order to ensure this, a clear distinction is made between the steps of reading out and evaluating,” it says. The BVerwG has already emphasized in its guiding principle above the text of the judgement: The concept of the evaluation of mobile phones & Co. includes “all measures” to clarify the identity and nationality of a foreigner: “This also includes reading out a data carrier.”

The Federal Ministry of the Interior justifies its initiative as follows: “The early selection ensures that this step can already take place during the application process and thus at a time when there is the greatest possible probability of the existence of relevant data within the scope of the asylum procedure.” It is about the “least intensive intervention”, since otherwise the respective data carrier would have to be retained longer. The evaluation is still only permitted “if this is necessary and no milder means are available”. This step should take place no later than the hearing. Until then, the foreigner has the opportunity to present valid official documents and thus avoid having to go through the data.

At the same time, the BMI wants to establish a broad concept of a data carrier. According to him, it should be made clear that all mobile devices including smartphones “and external data clouds” are included. It cites Google Drive as an example of such a cloud application. The need for this addition arises “from the increasing importance of this form of data storage for people from many countries of origin”. Sarah Lincoln from the Society for Freedom Rights (GFF), who supported the crucial complaint by an Afghan woman before the BVerwG, described the planned approach to Netzpolitik.org as “completely disproportionate”. The initiative not only undermines the verdict, but also violates constitutional and European data protection requirements. Should the law be passed in this way, the only way left is to go to the Federal Constitutional Court.

(olb)

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