Constitutional Court reviews messenger surveillance: Oral hearing raises fundamental rights questions

To this end, software is to be installed on the affected individuals' devices that reads messages before they are encrypted. The coalition deliberately avoids the term "state trojan," but from critics' perspective it is de facto precisely such an instrument. The ÖVP itself also spoke internally of a program "that the coalition does not want to call a 'state trojan,' but de facto would be a state trojan."

Background: From the federal trojan to messenger surveillance

Lawyer Michael Rohregger, who appeared in the hearing, spoke of an "unprecedentedly invasive measure." The law comes with "massive infringements on fundamental rights" and is therefore not acceptable, he said. However, his fundamental concern was not objectionable: "The goal is not objectionable at all," Rohregger emphasized.

The head of the Directorate for State Protection and Intelligence Service (DSN), Sylvia Mayer, on the other hand defended the law as necessary. She spoke of the "unconditional necessity" of expanding investigative capabilities. From the perspective of the security authorities, one must be able to respond to changed threats.

A central point of criticism is that essentially nothing has changed compared to the 2019 predecessor provision on the "federal trojan." At that time, the VfGH had criticized that the previous law could have applied even to lesser offenses. The current regulation is more narrowly defined, but in its wording still closely follows the model.

Technical objections: Security vulnerabilities kept in reserve

The technical implementation is particularly controversial. According to a questionnaire obtained by DER STANDARD, the VfGH wants to know, among other things, whether security vulnerabilities must be exploited for messenger surveillance, how "the integrity of the evidence obtained through surveillance is ensured," and whether, for example, the commissioned software company could "read along."

In a written submission available to DER STANDARD, the FPÖ and the Greens warn of far-reaching consequences. To technically enable surveillance, vulnerabilities would have to be exploited and "kept open 'in reserve' until their use, even though this increases the vulnerability of the end devices to other actors as well." The state would "rather be obliged, in the interest of protecting its citizens, to report such vulnerabilities to the software manufacturers in order to enable them to fix them."

The parliamentarians also emphasize that the law affects the entire population: "Anyone who does not know whether their expressions are being monitored adjusts their communication accordingly." In their view, this so-called 'chilling effect' contradicts the liberal basic principle and the fundamental right to freedom of expression.

Political dimension: An ÖVP prestige project under pressure

The FPÖ and the Greens, who are jointly bringing the law before the VfGH, also harbor "considerable doubts" that the intended independent oversight is actually independent. They are thinking of possible ransomware attacks: "This can even affect critical infrastructure such as the healthcare system or energy supply."

In the parliamentarians' logical view, the authorities should therefore not be dependent on such security vulnerabilities at all. The application by the two opposition parties aims to annul the law in its entirety, as it goes beyond existing powers and is not constitutionally covered.

The ÖVP has particular political significance in the proceedings, as the law came about largely at the insistence of Federal Chancellor Christian Stocker and the People's Party. It would therefore hit the ÖVP all the harder if the Constitutional Court were to continue its strict jurisprudence on broadly defined surveillance measures – such as that on the so-called "federal trojan," which it killed off in 2019.

When the "federal trojan," later overturned by the VfGH as a "serious intrusion into privacy," was passed in 2018, then Interior Minister Herbert Kickl enthusiastically praised the surveillance instrument as part of the "largest security package." Today, FP Secretary General Christian Hafenecker is appalled by the "totalitarian surveillance madness" in the three-party coalition in view of the legally significantly more restricted messenger surveillance.

Open questions from the highest court

The political charge of the issue is also evident in a heated exchange of words. ÖVP Secretary General Nico Marchetti described the Freedom Party and the Greens in a press release, because of their application, as "police-haters" and Hafenecker in particular as a "hobby detective." This rhetoric underscores how much the coalition sees the issue as a core security policy question.

The fact that the VfGH is holding an oral hearing does not mean that it will announce its decision immediately. The 14 court members who sit on the panel want to probe critically, as emerges from the questionnaire. The decision could still take weeks or months.

Outlook: A decision with reach

In terms of content, it appears that the court will carry out a cool balancing of security interests and the protection of fundamental rights. Observers expect that the VfGH will examine in particular the question of proportionality and the depth of technical intrusion. Should the highest court follow the application, this would be a severe blow to the federal government's security policy and a signal that even modern surveillance instruments must be measured against fundamental rights.

At the same time, it is open whether the VfGH will annul the law in its entirety or only object to individual provisions. Experience with the "federal trojan" shows that the court is quite willing to make sharp corrections to security policy projects. The decision is awaited with excitement, both in political circles and among experts.