Cybercrime, Internet Criminal Law and Computer Criminal Law in Germany

Cybercrime, in the narrower sense, on the other hand, refers to crimes that are directly directed against the internet, computer systems, data and networks. Simply put, the computer (or smartphone) must be either the means of the crime or the target. As technological progress constantly advances, IT criminal law is also subject to constant change and is one of the most rapidly developing areas of criminal law.

Precisely prepared attacks on such targets as large business enterprises or (critical) infrastructure facilities are increasingly coming to the fore. Such offences not infrequently result in severe damage to those affected. The list of offences that fall under the term cybercrime is extensive and includes, for example:

• the purchase of illegal goods on the internet (arms and drug trafficking),
• denial-of-service attacks,
• the distribution, acquisition and possession of child pornography,
• digital piracy and
• copyright infringement.

This short list of offences barely scratches the surface of what lies behind one of the fastest-growing crime areas. As internet use increases and we spend more and more of our lives online, this trend will likely continue.

Just as smartphones and the Internet influence every area of our lives, cybercrime and IT criminal law also cover several areas. Against this background, it is impossible to summarise all offences in a single law. Instead, acts of cybercrime in Germany are regulated by various legal fields.

The German Criminal Code (StGB) contains the following violations that can be assigned to the area of cybercrime:

• Spying on and interception of data, §§ 202a-c StGB,
• Computer fraud, § 263a StGB,
• Computer sabotage, § 303b StGB,
• Data alteration, § 303a StGB.

The German legislature has partially extended criminal liability to preparatory acts, such as the production or procurement of computer programs whose purpose is commissioning computer fraud (§ 202c StGB) to combat this criminal behaviour effectively and prevent damage. Careless handling of passwords can also lead to the initiation of preliminary proceedings. In addition, violations of many other criminal and regulatory provisions from a wide range of laws are possible if they can be committed with the help of the Internet. Conceivable violations include, among others:

• The Federal Data Protection Act (BDSG),
• The Copyright Act (UrhG),
• The Art Copyright Act (KunstUrhG),
• The German Telemedia Act (TMG)
• The Unfair Competition Act (UWG).

The Tor network, better known as the “Darknet, ” has been known to the public for a long time. Most people are familiar with it as a marketplace for drugs, weapons and child pornography. Payment is usually made in cryptocurrency. Of course, this area of the internet has not gone unnoticed by law enforcement agencies, so the darknet is often the focus of investigative measures.The darknet is primarily a way for internet users to be online, communicate and access websites anonymously. The browser is freely accessible to everyone or can be freely downloaded. The darknet’s mere use does not constitute a criminal act. However, the anonymity there offers its users many opportunities and incentives to commit crimes.

Against the background that the use of the internet continues to increase and that there are more and more reports in the media about the misuse of personal data, online tracking, etc., it can be assumed that the use of the darknet is also likely to increase. Whether cybercrime will also increase in this context can only be speculated. What is reasonably certain, however, is that it will continue to be a problem for investigative and law enforcement agencies in the future.

Due to the cross-border dimensions of cybercrime, the possibility of Interpol alerts is particularly attractive to national investigative authorities. Interpol stands for “International Criminal Police Organization” and is the second-largest international organisation with 194 member states. It aims to intensify and improve international cooperation in police work. It thus supports the national police and prosecution authorities in the individual member states in the fight against crime. For this purpose, Interpol essentially makes various databases and information available between the member states, enabling a worldwide exchange of information.

Utilising what are known as “diffusions” and “notices, ” individual Interpol member states can make various requests to other member states through Interpol. These alerts are primarily used to locate one or more specific individuals wanted by a member state. In doing so, the search is not limited to alleged perpetrators of a crime but also victims or witnesses and persons deemed to be a danger to the public. An alert, especially an Interpol Red Notice, issued against an individual is accompanied by enormous restrictions for that individual and the risk of arrest along with subsequent extradition to the requesting state. Therefore, it is of considerable importance that this alert has not been obtained improperly or is otherwise unlawful and thus violates the rights of the person concerned. In this respect, there is a right to information on any existing Interpol alerts and a right to have them removed.

Our extradition lawyers at Schlun & Elseven Rechtsanwälte are experts in dealing with Interpol alerts and securing their deletion. Due to their enormous wealth of experience, they can advise you extensively and in the best possible way.

In Germany, online searches in criminal proceedings are subject to stringent prerequisites as stipulated in § 100b StPO (German Criminal Procedure Code). This investigative measure, known for its intrusiveness, can only be authorized if there is a suspicion that the person in question is involved in a serious criminal offence or even a minor offence if the suspicion is substantial (BGHSt 41, 30, 33). The assessing judge enjoys a margin of discretion in determining the sufficiency of this suspicion.

Moreover, the severity of the offence must justify the intrusion into the integrity and confidentiality of IT systems, evaluated based on the offence’s impact on the affected legal interests. Additionally, the principle of subsidiarity (§ 100b (1) no. 3 StPO) mandates that online searches are permissible only when other investigative methods would significantly impede or fail to yield results, are excessively time-consuming, or produce insufficient evidence.

At Schlun & Elseven Rechtsanwälte, we specialise in these complex legal landscapes surrounding online searches and digital evidence within the German legal system. Our dedicated team provides expert representation to individuals facing allegations of cybercrime and internet offences. Combining our legal expertise with a profound understanding of technology and digital forensics, we strive to achieve favourable outcomes in even the most challenging criminal proceedings.