personal rights vs. government/police/prosecution

[thalamay]

I've had debates on here in the past regarding criminal prosecution and the rights of the individual against it. Currently, there's a public case in Germany which really makes me scratch my head and I don't feel comfortable to come down on either side. Anyway, I'll share the details here would like to get the perspective of the community on it.

It all started last year when Sebastian Edathy, an up and coming German politician from the Social Democratic Party (SPD) appeared on a list of a Canadian seller of Kiddie porn that was just raided by the Canadian police. Of course the German police was informed and an investigation was started.

Right there is the first issue, because apparently the material he bought was legal in Canada and most likely also legal in Germany, although law experts do disagree there as it's a grey area. German law regarding kiddie porn is rather strict. What Edathy bought were videos of naked kids. That in itself isn't illegal in Germany, only when the kids start "to pose" or when the genitals are in the focus of the video, which obviously is a judgement call.
Anyway, this was enough for the prosecution to launch an investigation.

Now it gets really dicy though. Because right at that time the Germans elected a new government. Neither the Conservatives (CDU) nor the SPD got a majority on their own, so they started coalition negotiations.
Since Edathy was a member of parliament, the then secretary for the interior (CDU) was informed.
He then told his colleagues from the SPD that they might not want to propose Mr Edathy for any official posts during these negotiations as there was an investigation against him and it could have a negative backlash for the SPD and the government as a whole if one important member was found guilty of owning kiddie porn.
This was obviously illegal and the secretary would later have to step down because of it as he betrayed secrets he wasn't allow to betray.

But the cat was out of the bag now and Mr Edathy was tipped off by some unknown party (though indications are that it was someone from within the SPD). He stepped down from his seat in parliament and form all official posts and disappeared.
The prosecutors were perplexed and guessed what had happened and immediately got a search warrant. Once they arrived at his home, most of his computers were gone and they found remnants of destroyed hard drives. Two days later, Mr. Edathy reported that his government Laptop was stolen on a train ride to Amsterdam, that it happened a month earlier, but that he just hadn't gotten around to report it yet.

So hardly any evidence was found, but the circumstances clearly indicate that Mr Edathy did in fact own illegal kiddie porn, it's all just too convenient. At that point though, it seemed as if there wouldn't be a lawsuit as the evidence was lacking and the Canadian material simply not good enough to make a strong case.

Now however, a lawsuit was filed. The prosecution was able to produce evidence, however the question now is if that evidence was obtained legally.
For one, they went through the backup of Mr Edathy's government laptop on the parliament servers where they supposedly found illegal material. Here, it is however not clear if there's a legal basis for keeping such a backup in the first place.
Next, they apparently found connection data from the government laptop to illegal child porn sites. Again it is not clear if it was legal for the parliament to save them in the first place.
Lastly, they found prints and a CD in his home with material that the prosecution classifies as kiddie porn.

However, the prosecution might have made a formal blunder when they searched Mr Edathy's home. Members of parliament enjoy immunity before the law and the parliament first has to revoke that immunity before a prosecution can begin. In Mr Edathy's case, he stepped down, so his immunity expired anyway (I think within two days), but the police allegedly went into his house hours before said immunity officially expired.



So, two questions I'd like to get your opinions, but feel free to comment on any aspect of it:
1) Was it justifiable for the prosecution to start a criminal investigation, based solely on the (likely) legal purchase of videos of naked kids?

2) Should it be legal (regardless of whether it actually is) for the German parliament to keep backups and connection data of their government laptops that are loaned to MPs and should the prosecution be allowed to search them?

[MrBogosity]

So hardly any evidence was found, but the circumstances clearly indicate that Mr Edathy did in fact own illegal kiddie porn,

No, circumstances indicate he had something on his computers he didn't want others to know about. He is a politician; can you really think of no other alternatives? Plus, why would he have put kiddie porn on his government laptop?

For one, they went through the backup of Mr Edathy's government laptop on the parliament servers where they supposedly found illegal material. Here, it is however not clear if there's a legal basis for keeping such a backup in the first place.

And if the "illegal material" isn't kiddie porn, you have a whole host of other problems. If they look for kiddie porn, but find (say) pirated copies of Game of Thrones, is that the result of a valid search?

So, two questions I'd like to get your opinions, but feel free to comment on any aspect of it:
1) Was it justifiable for the prosecution to start a criminal investigation, based solely on the (likely) legal purchase of videos of naked kids?

No. There were too many other possibilities and the whole thing smacks of a fishing expedition. Even if they're right and he had kiddie porn, they just played the odds and won.

2) Should it be legal (regardless of whether it actually is) for the German parliament to keep backups and connection data of their government laptops that are loaned to MPs and should the prosecution be allowed to search them?

I don't know the particulars of German laws, or the procedures of their parliament and what they're expected to do with the laptops. I assume it's doing government business, in which case government has an interest in keeping the data secure, including making online backups. Connection data is the really iffy part; I can't think of any legitimate reason for them to do that, and it smacks of an easy way for opportunists to dig up dirt on the opposition.

Which is the question I had all along: who are his political enemies, and is the prosecution etc. known allies of them?

[thalamay]

No. There were too many other possibilities and the whole thing smacks of a fishing expedition.

It definitely sounds like a fishing expedition. Which begs the question: Are there circumstances in which this is ever ok? That also goes to the profiling thingy which is also nothing more than that. And in a sense, this was a result of profiling where the reasoning is that people who purchase legal images of naked kids are also likely to "upgrade" to illegal ones. It's just that in most cases one never hears about it as there isn't a public figure involved.

I'd guess that originally they monitored him more passively, but once it was clear that Edathy was tipped off, they went all in and got a search warrant.

I don't know the particulars of German laws, or the procedures of their parliament and what they're expected to do with the laptops. I assume it's doing government business, in which case government has an interest in keeping the data secure, including making online backups. Connection data is the really iffy part; I can't think of any legitimate reason for them to do that, and it smacks of an easy way for opportunists to dig up dirt on the opposition.

Which is the question I had all along: who are his political enemies, and is the prosecution etc. known allies of them?

Well, you raise an interesting point there. Of course, the biggest political enemies usually are within one's own ranks and they're usually also the ones nobody ever hears about.

In this case, there's an interesting twist though which did in fact spawn lots of conspiracy theories once the story originally broke last year, namely that Mr. Edathy was the chairman of a parliamentary board of enquiry which was supposed to get to the bottom of the NSA spying scandal (in the previous parliament, before the elections). Ultimately, it didn't go anywhere of course, but he was supposedly rather dedicated and asked lots of inconvenient questions. Which is also why he was on the short list to get a prominent job within the new administration after his party finally got back a seat at the table of power.

So while there aren't any known enemies, the American "allies" and their friends in German politics (whoever either of them are) certainly didn't shed any tears that Edathy's political career was cut short.