Police Dragnets Catch Few Fish - Max-Planck

RESEARCH & SOCIETY
CRIMINAL LAW
Police Dragnets
Catch
Few Fish
Are dragnet searches unconstitutional? This question
has been the subject of heated debate among authorities and legal and data protection experts for the past
30 years. A planned law is set to give Germany’s Federal
Criminal Police Office even greater access to databases –
and in cases involving imminent danger, even without
the prior authorization of the courts. DIRK PEHL of
the MAX PLANCK INSTITUTE
FOR
INTERNATIONAL CRIMINAL LAW
FOREIGN
AND
conducted the first
study ever of just how useful such search methods
are in solving or even preventing crimes.
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Wie wär’s mal wieder mit einem ZwiTi
P HOTO : C ORBIS
tefan L.’s (not his real name) tale of what happened
to him last summer is reminiscent of a disturbing
literary classic. His experience with German authorities
is eerily similar to that of Josef K., the main character in
Franz Kafka’s THE TRIAL. Out of nowhere, he, too, was
pulled into the depths of the justice system for no apparent reason. In the course of a dragnet search, Stefan
L., an innocent bystander, got scooped up in the investigators’ nets – by-catch, as it were. “This sort of thing
can happen,” says Dirk Pehl of the Max Planck Institute
for Foreign and International Criminal Law in Freiburg.
He examined the efficiency of dragnet searches as part
of his doctoral dissertation, and his findings were hardly
flattering.
A dragnet search is based on a similar principle to a
fishnet, as it aims to catch the big fish – namely terrorists, criminals or others who are considered to pose a
“considerable danger to the government or the country,
or to the well-being or lives of individuals.” When such
dragnet searches began some 30 years ago, the police
were fishing in a relatively small data pool.
The first criminal searches of this kind, which were
intended to track down Germany’s Red Army Faction
(RAF) terrorists, collected only addresses, car registration data or information such as how a suspect paid his
electricity bill. In contrast, today’s investigators can obtain the authorization of the courts to access much richer sources of information. Credit card payments, information on telephone connections or self-disclosures
made in entirely different contexts, such as on a tax return, can tell investigators a lot about a person.
In view of this criminological passion for gathering
information, data protection specialists have predicted
the rise of Big Brother. At the moment, however, the law
stipulates certain limits. For instance, prior to initiating
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a dragnet search, investigators must obtain the permission of the courts, even in cases where the aim is to prevent a major crime. The legal framework for this is provided by the law on fighting organized crime, which
only began regulating dragnet searches in 1992 (in section 98a of Germany’s Code of Criminal Procedure), and
the police laws of the German states.
Although law enforcement agencies had already used
the first dragnet search in 1977 to find the kidnappers
of German businessman Hanns Martin Schleyer, the
method still triggers explosive debates. Just recently, the
discussion on whether dragnet searches are a blessing or
a curse erupted anew when Wolfgang Schäuble, Germany’s Minister of the Interior, proposed expanding such
searches. He also suggested allowing employees of Germany’s Federal Criminal Police Office to conduct dragnet searches in cases involving imminent danger – without the court’s prior permission.
Research under difficult conditions
Freiburg-based legal researcher Dirk Pehl’s work will
likely reinvigorate the debate. Over the past two and a
half years, he has analyzed all investigations undertaken by the public prosecutor’s office that have involved
dragnet searches. “This was not an easy task,” he says of
the sometimes tedious research work. “The biggest problem was gaining access to the information at all.” He
first wrote to data protection officials, none of whom
had any material about the catches in their databases.
Ultimately, the Max Planck researcher managed to
find the right contacts. He wrote to each public prosecutor’s office individually and had the good fortune that
each and every one of them remembered the dragnet
searches they had conducted. “After all, it isn’t something they do every day,” says Dirk Pehl.
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DPA
he found out that only defendants – or their lawyers –
can gain access to their records. “But you don’t have
that right if you’ve only been summoned as a witness,”
says the Munich resident, still stunned. “In that case,
you have practically no rights at all.”
Luckily for him, his lawyer found a particularly talkative police officer at the commissioner’s office. He explained that there had been a series of sexual assaults in
the city’s southeast. There were no witness accounts of
what had happened, but they did have traces of the perpetrator’s DNA, which is why men in the area had been
summoned to provide saliva samples. What Stefan L.
still did not suspect at this point was that he was playing the role of an extra in a dragnet search.
As Dirk Pehl found in his case studies on investigative
approaches, these are quite popular among investigators
as a preliminary step for mass genetic or DNA tests.
“And these are also the cases in which the dragnet
searches were often successful,” says Pehl. A dragnet
search can efficiently limit the number of suspects,
which helps an investigation move ahead. However, the
perpetrator’s profile must be as detailed as possible. If
the criteria are too imprecise, the number of suspects
will be too large, and people like Stefan L. wind up getting caught in the dragnet.
The family father who was involved in a sexual offense without knowing it still does not know the exact
details of the investigation. He has, however, been able
to draw some conclusions based on the bits of information the police have provided. The authorities were
looking for a man who lived in his neighborhood. And
because the crimes were committed during the last
week of school holidays, the police must have assumed
that the perpetrator was a teacher, “as if only teachers
knew when the holidays are,” he says sarcastically. “It
didn’t help that I could prove that I was out of the
country at the time, and that I’m not even a teacher,
but a consultant.”
Stefan L. spent a considerable amount of time wondering about why the police concluded that he was a
teacher, and he finally figured it out. “They must have
had access to documents from the local tax office.”
Years ago, Stefan L. had a part-time job as an instructor,
which he mentioned in his tax return. He does not know
whether the investigation led to the desired results. Once
he had provided his saliva sample, he never heard from
the police again.
Preventative dragnet searches, which began after the
terrorist attacks of September 11, 2001, have demonstrated the extent to which the success of a search depends on the precision of the profile. In the case of
these searches, completely innocent people got caught
in the crosshairs. They were looking for sleepers, po-
P HOTO :
DPA
P HOTOS :
The police applied dragnet searches for the first time in the search for
RAF terrorists and Hanns Martin Schleyer’s kidnappers 30 years ago.
As a result of his hard work, the researcher was able
to collect the files of 27 investigations in which a total
of 31 dragnet searches were carried out. While this may
not sound like much, it represents a complete survey of
the public prosecutors’ investigations in which one or
more actions according to sections 98a and b of Germany’s Code of Criminal Procedure have been ordered and
conducted since these began governing dragnet searches. Another reason why the number of dragnet searches
is not very high is because they are not applied everywhere. In fact, dragnet searches are generally conducted
either by Germany’s Office of the Federal Prosecutor or
by authorities in the federal states of Bavaria, Hesse or
North-Rhine Westphalia.
As Pehl discovered, about a third of the dragnet
searches had a stated aim of finding persons who possessed features that were important to the investigation.
“But dragnet searches also serve to investigate the facts,
identify accomplices, determine the structure of criminal groups, investigate suspects’ whereabouts and prepare large-scale DNA analyses.” In about half of the
dragnet searches, investigators included information
provided to them by registration offices. They also
searched data from Germany’s Federal Motor Transport
Authority, sometimes even repeatedly in a single investigation. Most often, however, they used internal police
databases.
As a little fish caught in the authorities’ dragnet, Stefan L. personally experienced many of the empirical
findings that Pehl cited in his dissertation. The 43-yearold remembers how it all began: with a gray envelope in
his mailbox. “At first I thought it was a parking ticket,”
he says. But even that surprised him, as he could not remember having committed any traffic violations.
His astonishment grew when he read the letter, which
was a subpoena. He was to appear as a witness at Germany’s Federal Criminal Police Office two weeks later.
“I had no idea what it was that I was supposed to have
witnessed.” A terrible feeling crept over him. He immediately called the police commissioner’s office, which
unsettled him even more. He had been caught up in a
dragnet search, the friendly clerk on the other end of
the line explained to the increasingly appalled man.
No further details were available, he was told. He
would simply have to appear on the date mentioned in
the letter. The additional comment that he would have
to provide a saliva sample there didn’t exactly help to
reassure him.
In a state of panic, Stefan L. sought out a lawyer to
find out just what the police were investigating and
what it had to do with him. While this step did not provide him with the desired enlightenment, he did gain
new insights into Germany’s legal system. For instance,
– P ICTURE A LLIANCE
CRIMINAL LAW
– P ICTURE A LLIANCE (2)
RESEARCH & SOCIETY
Looking for perpetrators in the lab: Whoever
is caught in the dragnet is summoned to a DNA test.
tential terrorists on standby, whose most distinguishing feature is their lack of distinguishing features.
“Something like that is destined to fail,” says Dirk Pehl
about the use of dragnet searches for such purposes.
His study concludes that “measured in terms of the
categories used in repressive dragnet searches, this
type of action can have only limited success.”
Flood of information overwhelms police systems
Even with normal dragnet searches, the police’s luck
seems to be limited. The figures the legal researcher
published as a result of his detailed study of police files
speak for themselves. According to Pehl’s findings, only
13 percent of dragnet searches to date have led to the
identification of a perpetrator. “For another 13 percent,
findings were inconclusive, and 16 percent were considered unsuccessful,” Pehl explains. In the remaining cases, the police had limited success. The method provided
a new approach to conducting investigations, “but it did
not contribute to solving a case,” says Pehl.
In some cases, it is not an imprecise profile that is to
be blamed for the failure. Often, police systems are ill
equipped to process the information – which, to compound the problem, is often outdated, incomplete, or incompatible with the investigators’ system. In addition,
outdated software, especially that used at registration
offices, makes investigations more difficult or delivers
useless information.
Dragnet searches are also problematic from a data
protection point of view. Even collecting personal data
is a violation of the basic right to informational self-determination when, as is generally the case with such
searches, it is done without the prior knowledge of the
person concerned. This publicity right entitles all individuals to decide where, when and how their personal
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RESEARCH & SOCIETY
on how and when the affected parties should be informed, public prosecutors say that informing a suspect is the job of the police.
The situation was similar for Stefan L. To this day, he
remains in the dark about the results of the dragnet
search and his saliva sample. And he wonders what
will happen with his information. Although it has to
be deleted, he does not know whether this has already
P HOTO : K EYSTONE
information may be disclosed. Another problem lies in
the fact that, by linking data, a personality profile can
be constructed, and the concerned individual has no
control over its accuracy or how the information is used.
This violates a 1983 ruling of Germany’s Federal Constitutional Court. Furthermore, the mere thought of being
subject to data collection can influence or confine a
person’s behavior.
The databases of public authorities and offices are often outdated,
and information must be sorted in a long and arduous process.
It seems that the skeptics aren’t entirely unjustified in
their suspicion of the clandestine data collection practiced in dragnet searches. Over the course of his research
and discussions with investigators, Dirk Pehl uncovered
some delicate issues that could raise hackles – and not
just for outright opponents and those with general concerns. In practice, a number of standards are simply ignored, and legal processes are sped up by cutting corners. For instance, Pehl finds it questionable that, in
many cases, the justification for a dragnet search is not
sufficiently discussed beforehand. This is particularly
true in investigations ordered by courts or public prosecutors’ offices, and less so in the case of those ordered
by the police. The short timeframe within which dragnet
searches are proposed, requested and authorized also
suggests that the basis for these searches is often “the
result of rather informal arguments and justifications.”
Not a tool for quick fixes
According to Pehl, the authorities’ information policies
are a particular cause for concern. “In almost twothirds of cases, people who were the subjects of further
investigation weren’t informed, even though this is legally required.” Pehl blames this state of affairs on the
fact that public prosecutors’ offices and the police often disagree on who is responsible for providing suspects with information, and even on how much information they should be given. While the police often
argue that the public prosecutor’s office should decide
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been done. In legal terms, the situation is cut and dry.
The law clearly lays out the scope of the duties and authority of the Bavarian state police: “If the purpose of
the action has been fulfilled, or it becomes clear that it
cannot be fulfilled, the data collected over the course
of the search must be deleted from the data carrier. All
related documents must also be destroyed, provided
that they are not necessary to investigating a crime.”
Despite this stipulation, there is no obligation to provide information on whether this has been done. As a
result, the concern remains that another gray envelope
could turn up in the mail the next time a search is
conducted in a similar matter.
With his dragnet search work at the Max Planck Institute in Freiburg, Dirk Pehl has made an important contribution to basic research. For as heated as the recurrent legal and political debates on whether or not
dragnet searches make sense have always been, there
was never much in the way of hard facts on the issue.
“Previous studies on the topic always focused on whether or not dragnet searches violate the constitution. There
weren’t even any statistics on how many times these
searches had been conducted,” says Pehl.
Dirk Pehl was the first researcher ever to examine the
effectiveness of this police instrument. He exposed a
lack of court control, outdated software, technical difficulties and a low success rate. Despite this, he believes
that dragnet searches do have their place: under specific
circumstances and with excellent preparation to solve
special cases. “But it shouldn’t be a tool to be used spontaneously for whatever case comes up,” the legal researcher asserts.
BIRGIT FENZEL