Facts
In 2017 Hesse acquired Palantir’s “Gotham” software and began operating it as “hessenDATA”, an analysis platform that links police databases previously kept separate. Its legal basis was section 25a(1) of the Hesse Security and Public Order Act (HSOG). Hamburg had enacted a comparable power in section 49(1) of its Act on Data Processing by the Police (HmbPolDVG). Separate groups of complainants lodged constitutional complaints against each provision. They argued that allowing the police to analyse large volumes of stored data automatically violated their right to informational self-determination.
Question
The Court had to decide whether provisions allowing the police to process stored data through automated analysis or automated interpretation were compatible with the Basic Law. That raised the question whether further processing of data the police already hold is a separate interference with fundamental rights and, if so, what thresholds and safeguards the legislature must lay down. The Court also considered how the weight of the interference changes where the statute places no limits on the types and volume of data or on the methods of analysis, including self-learning systems and predictive policing.
Decision
In its judgment of 16 February 2023 the First Senate held that both provisions violated the right to informational self-determination. Automated data analysis is an interference separate from the original collection, because it can generate new intelligence and comprehensive profiles of persons, groups and circles. Since the provisions set no limits on the type or volume of data or on the methods used, they permitted a serious interference, which can be justified only where there is an identifiable danger to particularly weighty legal interests such as life, limb or liberty. The Hamburg provision was declared void. The Hesse provision could apply until 30 September 2023 under strict conditions, including specific facts pointing to particularly serious crimes.
Why it matters
The judgment treats the linking and analysis of police data through software as an interference in its own right, with its own constitutional requirements. The Court added that self-learning systems may be used in police work only with special procedural safeguards that make up for the reduced scope for scrutiny. Legislatures regulating AI-assisted analysis tools in policing are therefore expected to set out in the statute which data and methods may be used, and at what threshold.