The German Federal Constitutional Court overruled the use of software proposed by Palantir, a US-based data analytics firm that many intelligence agencies like the CIA, FBI and NSA initially supported. The ruling concluded a case which began last December, brought by the German Society for Civil Rights (GFF). The plaintiffs were of the opinion that the software could be used for predictive policing by pinpointing the mistakes and discrimination of law enforcement.

The case was brought to light on behalf of 11 plaintiffs. It relied on the argument that the software programme, ‘Hessendata’, enables predictive policing using data that helps to develop profiles of potential suspects even before the crime is committed. GFF criticised the legal basis of the acts authorising these systems. It was said that Hesse and Hamburg had not clarified the sources the police could use for acquiring data. It was also criticised that they have failed to convey on what grounds law enforcement could conduct data mining. The court observes that the power given to the police in Hesse has been used multiple times each year through the Hessendata platform. 

The German state of Hesse has regularly used the software since 2017, but it is not yet implemented in Hamburg. The state representatives believe that this software is a solution for preventing crimes and can be used to gather and process data collected somewhere.

On the other hand, Palantir claimed that Hessendata could only provide software for data analysis and not the data itself. “Palantir brings you the software to the data, not the data to the software”, says Jan Hiesserich, Executive Vice-President for Strategy and Communications of Palantir to the German newspaper, Handelsblatt. He adds, “It is our customers who determine which data is relevant for the investigation in accordance with the relevant legal provisions”. 

However, the German Federal Constitutional Court in Karlsruhe has struck down the acts that provided a basis for the police to process data using automated data analysis in the case of Hesse and automated data interpretation in Hamburg. The court observed the system as “unconstitutional” as they were found violating the right to informational self-determination. 

The court claimed that “Given the particularly broad wording of the powers, in terms of both the data and methods concerned, the grounds for interference fall far short of the constitutionally required threshold of an identifiable danger”. The court also reminded that “the use of automated measures that interfere people’s rights like this is only permissible to protect particularly weighty legal interests like life, limb, liberty of the person”.

Accordingly, the Hamburg act was proclaimed void, and the system could not be installed. However, as the state of Hesse was already using the technology, it was given time till 30th September to reform its legislation, and till that, the system will be under restrictions.  

It was also reported that last December, the Fundamental Rights Agency of the European Union gathered policymakers to make sure the AI algorithms used in law enforcement for predictive policing are scrutinised for potential biases that result in any kind of discrimination.