The public prosecutor’s office in Hanover wanted to force the head of the e-mail provider Tutanota to allow monitoring of e-mail traffic by means of coercive detention this spring. However, the company fought the surveillance order in court. “We find the unlawful threat of coercive detention very questionable”, said managing director Matthias Pfau to our site. First the mirror had reported uber the process.
The case involved an investigation by the Czech police on the basis of an explosion. In April, following a request for legal assistance from the Czech Republic, the Hanover District Court ordered the “ordered the monitoring and recording of telecommunications” of a mailbox at Tutanota. The provider defended itself, arguing that email-only providers are not allowed to monitor and record telecommunications, according to the so-called “Gmail ruling” of the European Court of Justice (ECJ), pure e-mail providers are not “telecommunications providers” and therefore cannot be obliged to monitor telecommunications. Tutanota informed the public prosecutor’s office that the Federal Network Agency also classifies the company accordingly.
Police on the doorstep
However, this did not impress the investigators. “The conditions for ordering coercive detention pursuant to Section 70 Para. 2 of the Code of Criminal Procedure have been met”, the police threatened by mail. A short time later, the public prosecutor’s office requested five days of preventive detention for Pfau. The police rang the doorbell of the manager’s house to deliver the message in person. In addition, the district court imposed a fine of 1000 euros.
Tutanota now appealed against the underlying district court decision. Successful: In June, the Regional Court of Hanover overturned the order. The district court has suspended the surveillance “wrongly ordered”, says the judgment, which is available to our site. The judges refer to the ECJ decision in it.
According to Tutanota, in the meantime other courts have ordered telecommunication surveillance. The ECJ ruling, which was handed down in 2019, has apparently not yet spread everywhere. Tutanota also resists these court decisions.
Telecommunication monitoring of Tutanota mailboxes would also be highly problematic from the company’s point of view for another reason: Tutanota says it encrypts all mail as soon as it is stored. The company had to bypass this system to enable mailbox monitoring. “Once we bypassed our encryption, it would ultimately weaken the IT security and privacy of all our customers significantly”, Pfau emphasized.
As recently as 2019, Tutanota had been forced by a court order to include such a feature for court-ordered, individual surveillance takedowns. However, the company has since reversed this step again. “The software for carrying out TKG monitoring has been removed from Tutanota, so that we cannot implement such monitoring”, the Hanover-based company announced.