Should I hire a private investigator?

When private detectives observe via GPS: The cheapest method is not the most legal

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In film and television, private detectives like to investigate using all conceivable methods. There are also countless offers from detective agencies on the Internet that advertise the possibility of GPS tracking of target persons. However, the private investigators can make themselves liable to prosecution, as two regional courts recently found. Michael Marc Maisch explains what detectives are really allowed to do.

With GPS tracking systems, car thefts can be cleared up and people can be observed. Not only the police have such systems, detective agencies also offer GPS devices that are just the size of a pack of cigarettes. Secretly attached to a vehicle, the device sends a location report every time it starts, stops and while driving. In this way, detailed movement profiles can be created and provide insightful insights into professional and private life.

"Ultimately, this is the cheapest way for the client", praised a detective, who recently had to answer criminally before the district court (LG) Mannheim, about the advantages of GPS monitoring. Compared to personal shading, this method is less noticeable and less staff are needed.

The Mannheim judges sentenced the man to a suspended sentence. In dozens of cases, he had cars fitted with GPS transmitters to facilitate observation. He assumed his methods were legal. "I once learned somewhere: What is not forbidden is allowed," he summed up his assessment. The judges opposed this: Even the state law enforcement authorities would need a court order in order to use such methods (ruling of October 19, 2012).

GPS tracking of workers may be permitted

In fact, unlike the state authorities, a detective has no special rights. "A detective is allowed to do anything that is not expressly prohibited by law," writes the Association of German Detectives on its website. However, the Federal Data Protection Act (BDSG) provides for a number of such bans.

The data recorded with a GPS device is personal, as the detective agency can assign the movement profile of the person who is traveling with the vehicle (see LG Lüneburg, decision of March 28, 2011, Az. 26 Qs 45/11). In accordance with Section 4 (1) BDSG, the data subject must expressly consent to the processing of their data if there is no statutory permission. There is such a thing, for example, for covert observation of employees in Section 32 (1) BDSG.

According to this, employers are allowed to evaluate movement profiles in order to uncover criminal offenses if actual indications justify the suspicion that an employee has committed a criminal offense. The location must also be necessary and take account of the weighing of interests.

It is not only the detective who makes himself a criminal offense

Outside of employment relationships, in the opinion of the LG Lüneburg, there are no facts that could legitimize the GPS tracking of people by a detective agency. Section 29 BDSG allows business-like data processing for the purpose of transmission, especially if this is used for the activities of credit agencies. However, only if the data subject has no legitimate interest in not processing his or her data.

The commercial interest of the private investigator must therefore be weighed against the interest of the observed persons in deciding for themselves what to do with their movement data. Particularly in the constitutionally protected core area of ​​private life, this weighing will always come at the expense of the detective agency.

As the Mannheim judges stated, government agencies would also be forbidden to intervene in the core area of ​​private life by means of GPS, regardless of suspicion. Even investigative authorities are only allowed to use GPS devices against people who are suspected of a criminal offense of considerable importance, and only if other methods are less promising (Section 100h of the Code of Criminal Procedure).

If a detective violates the data protection regulations, he not only acts unlawfully, he is also liable to prosecution (Section 44 (1) BDSG). The law could therefore not expressly prohibit the detective from using GPS tracking. Incidentally, not only the executing private investigator, but also the executive board or the managing director of the detective agency, according to the LG Mannheim. Unfortunately, cheap doesn't always make sense.

The author Michael Marc Maisch is a doctoral candidate and research assistant at the chair for public law, security law and internet law (Prof. Dr. Dirk Heckmann) at the University of Passau.

With material from dpa.