Germany's Constitutional Court Ponders Whether Government Users Of Zero-Day Surveillance Malware Have A Duty To Tell Software Developers About The Flaws
from the resolving-conflicting-aims dept
As Techdirt has reported previously, the use of malware to spy on suspects — or even innocent citizens — has long been regarded as legitimate by the German authorities. The recent leak of thousands of telephone numbers that may or may not be victims of the Pegasus spyware has suddenly brought this surveillance technique out of the shadows and into the limelight. People are finally starting to ask questions about the legitimacy of this approach when used by governments, given how easily the software can be — and apparently has been — abused. An interesting decision from Germany’s constitutional court shows that even one of the biggest fans of legal malware is trying to work out how such programs based on zero-days can be deployed in a way that’s compatible with fundamental rights. The court’s press release explains:
The complainants [to the constitutional court] essentially assert that, by enacting the authorisation laid down in [the German Police Act], the Land Baden-Württemberg violated the guarantee of the confidentiality and integrity of information technology systems — a guarantee arising from fundamental rights — because under that provision, the authorities have no interest in notifying developers of any vulnerabilities that come to their attention since they can exploit these vulnerabilities to infiltrate IT systems for the purpose of source telecommunications surveillance, which is permitted under [the German Police Act]. Yet if the developers are not notified, these vulnerabilities and the associated dangers — in particular the danger of third-party attacks on IT systems — will continue to exist.
That is, the failure to notify developers about the vulnerabilities means the authorities are putting IT systems in Germany at risk, and should therefore be stopped. The complainants went on to argue that if the court nonetheless ruled that the use of such malware was not considered “inherently incompatible with the state?s duty of protection”, at the very least administrative procedures should be be established for evaluating the seriousness of the threat that leaving them unpatched would represent, and then deciding on a case-by-case basis whether the relevant developers should be notified.
The German constitutional court dismissed the complaint, but on largely technical grounds. The judgment said that the complainants did not have standing, because they had failed to substantiate a breach of the government’s duty of protection. Moreover, the top court said the question should first be considered exhaustively by the lower courts, before finally moving to the constitutional court if necessary. However, the judges did recognize that there was a tension between a desire to use zero-days to carry out surveillance, and the German government’s duty to protect the country and its computer systems:
In the present case, the duty of protection encompasses the obligation for the legislator to set out how the police are to handle such IT security vulnerabilities. Under constitutional law, it is not inherently impermissible from the outset for source surveillance to be performed by exploiting unknown security vulnerabilities, although stricter requirements for the justification of such surveillance apply due to the dangers posed to the security of IT systems. Furthermore, fundamental rights do not give rise to a claim that authorities must notify developers about any IT security vulnerabilities immediately and in all circumstances. However, the duty of protection does necessitate a legal framework that governs how — in a manner compatible with fundamental rights — an authority is to resolve the conflicting aims of protecting IT systems against third-party attacks that exploit unknown IT security vulnerabilities on the one hand, and on the other hand keeping such vulnerabilities open so that source surveillance can be carried out for the purpose of maintaining public security.
It’s not clear whether that call for a legal framework to regulate how the authorities can deploy malware, and when they must alert developers to the flaw it exploits, will be heeded any time soon in Germany. But in the light of the Pegasus leak, it seems likely that other countries around the world will start to ponder this same issue. That’s particularly the case since such malware is arguably the only way that the authorities can reliably circumvent encrypted communications without mandating the flawed and unworkable backdoors they have been calling for. If more countries decide to follow Germany in deploying these programs, the need for a legal framework to regulate their use will become even more pressing.