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Hanover-based email provider Tutanota is again forced by the court to help police monitor suspects. According to the advertisement, the “world’s safest email service” protects its customers’ messages from each other with end-to-end encryption and at least stores all other emails in encrypted form. The Cologne regional court is now forcing the company to rebuild its service so that investigators can still read individual mailboxes in order to obtain information about the perpetrators in an extortion case.
Such a monitoring function already existed in Tutanota, it was activated in June 2019. At that time, the company had to react to a decision of the Itzehoe District Court. At the time, CEO Matthias Pfau told SPIEGEL that monitoring would be activated selectively and only for individual accounts if there was a corresponding valid court order: “We try to protect privacy as best we can and so we are not happy to have to incorporate that function “. . End-to-end encrypted emails cannot and cannot be decrypted by Tutanota, only the sender and recipient can read such messages.
After a ruling by the European Court of Justice (CJEU) in the same month, the situation changed for Tutanota. The Court of Justice had ruled that e-mail providers – in the Gmail case – are not telecommunications services and therefore are not subject to the same obligations towards the police. When the public prosecutor’s office in Hanover in November 2019 – even in an extortion case – asked for help with surveillance, Tutanota managed to dismiss it before the regional court in Hanover with reference to the ruling of the Court of Justice. The company has removed the monitoring function from its systems.
After the Cologne court decision in August 2020, which has now become known, Tutanota has been reinstalling the technology ever since. “Even if we cannot understand the decision, we must implement it,” Tutanota spokeswoman Hanna Bozakov told SPIEGEL. But it will take “until the end of the year” to complete the renovation.
Tutanota is seeking a decision from the highest court
Above all, Tutanota is troubled by the court’s argument that an email provider is not a telecommunications service provider, but is a contributor. The Code of Criminal Procedure reads: “Due to the Telecommunications Monitoring and Recording Ordinance, all those who provide or are involved in telecommunications services must allow the court, the prosecutor and their investigators working in the service of police to take these measures. “
The only difference is that the judgment received by SPIEGEL does not explain in which telecommunications service Tutanota should be involved. Bozakov calls it “absurd”.
Ulf Buermeyer of the Society for Freedom Rights (GFF), a former judge of the Berlin regional court, also finds the regional court’s reasoning “unconvincing”. He finds it questionable whether the decision is admissible under European law.
Tutanota wants to file a complaint against the decision and is currently preparing “in a similar case to appeal to the Federal Supreme Court to obtain a decision from the highest court,” Bozakov said.
Buermeyer considers the case, however unpleasant it may be for Tutanota, at the same time as a good example of the need for encryption, which not even the provider itself cannot circumvent: “The lesson is: the law will not protect us from surveillance. Only encryption can do this. “
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