German Court to Rule About Phone Searches of Asylum-Seekers

How Phone Searches Work
Underlying the controversy is a paragraph Germany added to its asylum law in 2017 that allows authorities to demand access to the cell phones, laptops, and tablets of asylum-seekers if they cannot provide any valid passport or ID card and if an identification “cannot be achieved by milder means.”

Once inside the devices, authorities use software to scan files for clues about where the phones have been. Such digital evidence includes location metadata attached to photos, country codes of numbers saved on the phone, or the language used in text messages.

The program automatically compiles results in a report. That document is kept confidential until a lawyer at the BAMF grants the office’s case workers access. They can then factor in the results when they decide whether to grant asylum.

Between 2018 and 2021, the office searched over 47,000 devices of asylum-seekers, according to data provided by BAMF.

That was necessary to “ensure a high-quality and secure asylum procedure,” said a BAMF spokesperson. At the same time, he stressed that the searches were just one among several tools for “obtaining additional information to prepare the conduct of the asylum interview and, thus, placing the asylum decision on a broader and better basis.”

Backlash from Germany’s Civil Society
Since the practice was first introduced, it has met harsh criticism from civil liberties advocates in Germany — a country where the experience of two authoritarian regimes has made people particularly sensitive about privacy, and where the world’s first data protection law was passed in 1970.

At the forefront of that fight is the Berlin-based nonprofit GFF. In 2019, the group published an investigation arguing that phone searches are both ineffective and intrusive.

By 2020, the group had convinced three asylum-seekers from Syria, Afghanistan, and Cameroon to sue the BAMF. In three separate lawsuits, they argued that the agency had demanded access to highly intimate data stored on their phones without meeting the legal requirements. That, they said, encroached on their fundamental right to privacy.

During the very first hearing on June 1, 2021, held in an inconspicuous administrative court building in central Berlin, regional judges upheld the Afghan asylum-seeker’s complaint.

On the spot — and aware that the practice affects tens of thousands of refugees — both the GFF and BAMF agreed that a revision would go directly to the country’s highest administrative judges in Leipzig. Shortly after, the GFF decided, together with the plaintiffs from Syria and Cameroon, to pause the other two lawsuits until the top court’s decision.

The BAMF, meanwhile, has not changed its practice in the 20 months since, arguing that “the first-instance ruling represented an isolated case.”

What about Germany’s Data Protection Watchdog?
The upcoming decision will likely have a greater legal impact.

“The Federal Administrative Court will deal with the question of whether the relevant paragraph in Germany’s asylum law is a sufficient legal basis for what authorities are doing,” court spokesperson Carsten Tegethoff told DW. “In this respect, the lawsuit is of fundamental importance.”

At the same time, the ruling will also impact a separate complaint filed by the GFF that could put an end to the phone searches as they’re conducted today. 

In early 2021, the nonprofit asked Germany’s data protection watchdog, the Federal Commissioner for Data Protection and Freedom of Information, to look into the phone searches. Unlike the courts, the office has the power to directly order the BAMF to cease the practice.

Two years later, the watchdog has not yet reacted on the issue — something attorney Beckmann described as “disappointing.”

But Christoph Stein, a spokesperson for the agency, confirmed to DW that the case was still pending. The office, he added, “intends to take the pending decision into account in its further actions.”

All eyes are on what judges in Leipzig will decide.

Janosch Delcker is Chief Technology Correspondent at DW. This article was edited by Rina Goldenberg, and is published courtesy of Deutsche Welle (DW).