Excessively Long Duration of Analysis

Technical devices such as smartphones, laptops, or tablets are considered a veritable “treasure trove” of data (e.g., location, communication, financial, or health data) due to the information stored or recorded on them. It is therefore not surprising that these devices are typically seized or confiscated during searches.

In this context, investigative authorities place particular emphasis on the IT forensic analysis of electronic devices. IT forensic experts attempt to unlock the electronic device and then analyze it.

Important: You are under no obligation to disclose the password needed for decryption! However, investigators may use any passwords or decryption software they find and may even—as confirmed by the Federal Court of Justice (BGH) in its decision of March 13, 2025, 2 StR 232/24—compel you to use biometric authentication to unlock the device (unlocking via fingerprint or Face ID).

Due to secure encryption mechanisms and massive amounts of data, IT forensic analysis is often a lengthy process. This is an intolerable situation for those affected, some of whom must go without their cell phones for months or even years. In particular, the cell phone is an indispensable item for daily use, which affected individuals need for online banking, two-factor authentication, or similar purposes. In many cases, important data is stored on these devices.

Such a prolonged period without access to electronic devices is problematic in light of the fundamental right to informational self-determination (Art. 2, para. 1 of the German Basic Law [GG] in conjunction with Art. 1, para. 1 GG), the fundamental right to property (Art. 14 GG), and the right to effective legal protection (Art. 19, para. 4 GG).

There is no statutory provision specifying how long investigative authorities may take to complete this process. However, the measures must always be assessed in light of the principle of proportionality. Various factors play a role in this regard (the severity of the alleged offense, the intensity of the intrusion, the volume of data to be analyzed, and the priority of the analysis). It is important that structural deficiencies—insofar as they are responsible for lengthy analysis periods by the police and the public prosecutor’s office—must not be borne by the accused.

Case law has clarified in several decisions that the longer the analysis takes, the higher the requirements for the legality of the provisional seizure and analysis of information technology systems.

The court decisions outlined below are intended to provide guidance on how long and in which cases an analysis is (still) proportionate. However, no rigid time limits can be derived from them.

Here’s what you should take away from this:

1. You are not defenseless: The drastic measures of seizure/confiscation are subject to judicial review.
2. There are no strict time limits for the seizure/confiscation or the analysis of electronic devices.
3. A successful defense against seizure/confiscation requires a comprehensive analysis of the facts and a careful examination of the circumstances of the individual case to ensure they are consistent with the principle of proportionality.

Are you affected? As attorneys specializing in this field, we would be happy to advise you. Please contact us.