Anyone who used a supposedly tap-proof crypto cell phone probably assumed that they were communicating anonymously. In fact, the FBI read the messages sent via the Anom platform. For a long time it was unclear to the German criminal justice system whether such chat protocols could be used in criminal proceedings, although the exact circumstances in which they were obtained are still not clear today. The Federal Court of Justice (BGH) has now answered this question in favor of usability in a judgment that has now been published on February 11th (case number: 2 StR 43/25).
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With their decision, the Karlsruhe judges overturned a partial acquittal by the Fulda regional court, which was essentially based on the assumption that Anom chats were not suitable as evidence. The Fulda judges had partially convicted three defendants of drug-related offenses, but acquitted them of further allegations. The criminal chamber viewed the relevant Anom chats as unusable because the FBI neither disclosed the EU member state involved nor the underlying judicial decisions. This deprived the defendants of the opportunity to have the legality of the data collection effectively checked.
Background to the Anom investigations
The BGH did not follow this argument. In his opinion, neither the incomplete knowledge of the foreign investigative measures nor the lack of possibility of challenging the original surveillance justify a general ban on exploitation. The 2nd Criminal Senate thus confirms the case law that has already been developed, which the Federal Constitutional Court has now also approved.
The main point of contention is the construction of the Anom operation. After taking action against a provider of encrypted cell phones, the FBI itself developed a communication platform and had the devices specifically distributed in criminal circles. Users believed in secure encryption. In fact, the US authorities had the necessary means to decrypt it.
A server within the EU mirrored the communication and forwarded it to the FBI. The data later found its way into German investigations through legal assistance.
Usability despite open questions
According to the BGH’s opinion, it is not important for usability whether German courts can reconstruct all the details of the foreign measure. The decisive factor is whether the data is properly introduced and evaluated in the German procedure. Therefore, the regional court should have collected the evidence offered – especially chat protocols, the interrogation of the evaluators and the identification of the users.
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The Senate did not accept the accusation that foreign courts could have been deceived when ordering the measures. During the appeal proceedings, the defense relied on reports that the server state was Lithuania. Judges there are said to have been left in the dark about the nature of the operation. The Federal Court of Justice did not evaluate the content of these allegations because new facts generally cannot be clarified in the appeal process. That remains the task of the factual courts.
According to experts, the Karlsruhe judges are blocking the way to a blanket exclusion of Anom data, but do not rule out a review of specific legal violations during the collection. If evidence of deception or other serious procedural violations is confirmed, this could continue to have an impact on usability in individual cases. For criminal defense, general objections to the origin of the data are less likely to be successful than concrete attacks on its integrity, authenticity or the assignment of chat profiles to specific people.
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