back to article Sorry, psycho bosses, it's not OK to keylog your employees

Installing keylogging software on your employees' computers and using what you find to fire them is not OK, a German court has decided. In a decision (in German) last week, the Federal Labor Court looked at the case of a web developer at a media agency who was fired for developing a computer game for a different company while …

  1. MonkeyCee Silver badge

    Re: Fruit of the poisoned tree

    "But if the point of the legal system is to accurately determine who is guilty and who isn't, then discarding evidence seems to be somewhat counter-intuitive."

    But if it's been obtained illegally, it may not in fact be evidence. The whole point of chain of evidence is that it's not been tampered with. If it is obtained in a fashion not in line with the rules governing evidence, then it is invalid from the first.

    At what point to you draw the line? Are we allowed to torture suspects to make them confess, since that is also illegally obtained evidence? How about entrapment? Or evidence tampering, because a cop *knows* you are guilty?

    Almost always the difference between legally gathered and illegally gathered evidence is whether the police presented evidence to the courts that would justify a warrant *before* doing the search. That the cops will avoid this if they can is perceived by the judiciary as them attempting to circumvent certain checks and balances, which is why it will often get a severe reprimand.

    While TV and Hollywood like to present court cases as being very clear cut, with irrefutable evidence and no contradictions, almost always there are at least some things that do not completely line up. Hence why a jury or magistrate has to weigh the evidence and testimony and decide from there.

  2. JimC Silver badge

    Re: But if it's been obtained illegally, it may not in fact be evidence

    Aren't you conflating two separate, if related issues there? It is of course vitally important to establish the accuracy of evidence, but there seems no especial reason why legally gathered must always be truthful and reliable, and illegally gathered evidence automatically unreliable or misleading.

    I'm quite sure that a depressing number of trials end up with the wrong verdict even if every scrap of evidence has been gathered in strict obedience to the rules. It may be that prosecutions who break the rules of gathering evidence are also more liable to fabricate evidence, but association isn't causation.

  3. James O'Shea Silver badge

    Re: This seems similar to the global snooping (encryption) issue.

    "The idea that evidence that was obtained illegally should be deemed magically "invalid" is utterly mad and it amazes me that so many people seem to accept this bizarre idea."

    'Evidence' obtained illegally includes things like http://www.cnn.com/2017/07/20/us/baltimore-cop-allegedly-planting-evidence/index.html which was done because the cops _knew_ that the 'bad guys' were guilty. (Another example: the socks in the O.J. case, the ones with blood stains on the _inside_ and with crime lab blood preservatives in the blood... https://www.quora.com/Was-O-J-Simpson-framed-by-the-L-A-P-D) Cops fabricate evidence all the time. Having rules means that they can't always get away with it. (Just _mostly_ get away with it.) You cannot, you simply cannot, have people break the law in order to enforce it and still have a law enforcement system which has public respect. Which is why in large parts of the US and the UK a substantial proportion of the public lack respect for law enforcement. Why, I'm sure that I've seen evidence of such a lack of respect right here on El Reg.

    "You want murderers released into the community because an incompetent (or perhaps corrupt) policeman didn't follow the correct procedure"

    Yes, I do. Either the law is there for everyone, including cops, or it isn't. And if it isn't, then there will be trouble. If the cops can do anything they like to create or 'find' any evidence they need, then any 'suspect' will _know_ that he's in for it as soon as plod knocks on the door. Which means that, as he's gone anyway, might as well be hung for a sheep as a lamb, and he'll tend to meet plod with a shotgun.

    Carry on.

  4. Adam 52 Silver badge

    Re: This seems similar to the global snooping (encryption) issue.

    "Tony Bliar got that particular ball rolling well and nobody has done much to slow it down since."

    Precedent usually quotes Lord Goddard in 1861, quite a long time before Tony Blair.

  5. John Brown (no body) Silver badge
    Mushroom

    Re: This seems similar to the global snooping (encryption) issue.

    "So AC , you want to .live in a ' sensible' country where they will set aside the rule of law when it suits them, assume before the trial (if you will permit one) that the individual is guilty and prosecute with illegally obtained evidence because you have assumed the individual is guilty and therefore not equal before the law as all should be."

    No, he saying that if you find the tree is poisoned, you don't nuke the whole orchard from orbit.

  6. Anonymous Coward
    Anonymous Coward

    Re: This seems similar to the global snooping (encryption) issue.

    "In any sensible country they'd first prosecute the murderer, using *all* the available evidence,"

    Including made-up, forged and totally illusionary evidence. Just because they are "available". And if they aren't, Police will make it so.

    So basically you want a witch hunt where "murderer" is guilty by default and you just make the evidence to prove it if it doesn't exist. Piece of cake for Police and a common practise in every country where illegally "collected" i.e. made up evidence is allowed in Court.

    Total dictatorship, basically, and you call that "sensible"?

    Yes, it makes sense if your only goal is to put people in jail/execute as much you can and being actually guilty is totally irrelevant.

    Because there isn't and never can be any limit how much illegal evidence you can make if you want. Some picture manipulation? Piece of cake. Forged fingerprints? Who cares? Traces of DNA in wrong places? Totally trivial.

    Forging evidence is so trivial that literally anyone can do that.

    The second it's illegal but still causes convictions in court, it will be done in large scale: Prosecutors, best friend of the Police, want convictions and actual guiltyness is totally irrelevant to them.

  7. Anonymous Coward
    Anonymous Coward

    Re: This seems similar to the global snooping (encryption) issue.

    "Yes, of course you have to take into account the incompetence/corruption while evaluating the evidence"

    "Taking into account" the level of corruption in the Police?

    Are you even serious? No-one can estimate how much Police is lying in just this case at any accuracy, therefore totally absurd mindset.

    Totally fascist it becomes the moment you realize that the 'innocent until proven guilty' is basically thrown into trash bin and whole court exists to judge how much Police is lying and presenting totally made-up evidence in this case.

    As the court can't do that, everything Police brings into court, will be taken at face value, i.e. truth.

    No matter how obviously fake it is: The Judge isn't there to estimate the honestness of the Police, but honestness of the accused.

  8. This post has been deleted by its author

  9. Someone Else Silver badge

    Re: Fruit of the poisoned tree

    But evidence is evidence.

    Except when it's not.

    In this longitude, one is still (statutorily, at least) presumed innocent until proven guilty. In order to prove one's guilt the Powers That Be must present evidence. And one cannot prove guilt with illegally obtained evidence. Therefore, illegally obtained "evidence" is not evidence.

    Hope that's clear for you.

  10. David Roberts Silver badge
    Headmaster

    Fruit of the poisonous tree

    I thought the term used "poisoned" but Google suggests different.

    Go take a look.

    Search for fruit poison tree.

  11. Charles 9 Silver badge

    Re: Fruit of the poisoned tree

    "But evidence is evidence. If I trespassed on your property and saw you stabbing someone, does it mean that it didn't happen because I shouldn't have been there?"

    That's not considered Fruit of the Poisoned Tree. It covers police procedure in that they have to play things by the book. That means they can't seize evidence without proper authorization (such as a search warrant or acting in the immediate context of an arrest), interviews can only be conducted after the speaker is fully aware of his/her rights (the Miranda decision et al), and so on.

    To understand it a little better, consider the Adam-12 episode "Courtroom" (Season 2, episode 9; Adam-12 is well-recognized for its attention to realism). A man was arrested in his house for outstanding traffic warrants, but during the follow-up, an illegal pill mill was discovered and confiscated. Since the confiscation was not germane to the original arrest (and a search warrant was not obtained to confiscate it properly), the evidence was declared inadmissible due to Fruit of the Poisoned Tree, and the case of illegal drug manufacturing was subsequently dismissed.

  12. Robinson123

    Above the law?

    I'm confused... How can an "international organisation" not be under any legal jurisdiction? The jurisdiction and law attaches to the sovereignty of the ground their fat arses are sitting on, surely.

  13. Charles 9 Silver badge

    Re: Above the law?

    Unless, of course, there's an exemption under that particular country's law. For example, there are working agreements between countries concerning embassies.

  14. Doctor Syntax Silver badge

    The EPO's position seems to be that of terrorists everywhere when brought to justice: "I don't recognize this court".

  15. rpi3parallax
    Boffin

    pfft

    Proabably sacked him after realising the Game he was working on was gold dust and wanted to steal all his work and turn a profit on claiming the code was theirs.

  16. Kaltern Silver badge

    Used to work for a company as a CS agent working from home, on my own PC, telephone and internet all paid for by myself, and I was a paid employee, not a self employed 'worker'. As part of the process of working, you have to install dialer software that runs on the PC to enable telephone calls to be answered via a constantly open telephone line, managed by said software. The actual work interface was via *cough spit* Citrix.

    A few months in, I'd noticed some odd CPU activity, and noticed there was a VNC viewer installed, without my knowledge. It turned out that the dialer software quietly installed WinVNC, and ran in the background. Further digging revealed that the software not only had the option to show my desktop (not the Citrix side - Mine) which apparently was never actually used, but was also a keylogger which WAS used.

    I asked my line manager exactly why did they need to know what I was typing outside of the Citrix environment, given it was my own machine and internet connection. The answer? To make sure I wasn't doing anything in work time unrelated to the job.

    Happily, I discovered that I could easily block both VNC and the keylogger, and noone seemed to notice. That of course wasn't the point, as I certainly don't remember giving permission for my personal computer to be bugged in such a way.

  17. GrumpenKraut Silver badge
    Mushroom

    > ...the option to show my desktop...

    In GrumpenLand that would cause some exquisite trouble for the employer. As in: judge yelling at them. Not recommended. --------->

    Privacy law is part of the "Grundgesetz" (the nearest to a constitution we have). Screwing with that tends to get interesting... when caught.

  18. s. pam
    Facepalm

    But viewing porn in Germany is ok

    On your work computer I've heard from co-workers over the years as web monitoring was verboten

  19. GrumpenKraut Silver badge

    Re: But viewing porn in Germany is ok

    Kindly tell them that doing this is exceedingly stupid. Getting caught is one of the rather few ways to earn immediate termination, no realistic chance of fighting back. In practice this is about as bright as stealing stuff. Don't.

  20. James O'Shea Silver badge

    Re: But viewing porn in Germany is ok

    "On your work computer I've heard from co-workers over the years as web monitoring was verboten"

    That would be a Really Bad Idea(tm). Web monitoring may be forbidden, but there are many, many, MANY ways to detect porn-viewing, not least by having the gateway or whatever check IPs against a Bad Site List. I can do that on my network at work, and have set up a 'acceptable use policy' which is handed out to each new hire. I also have a nice 'acceptable use' screen pop up whenever anyone logs into the Active Directory network (there are a few things that AD is good for. This is one.) so that users can't say that they weren't warned. I don't monitor web activity. I do monitor the list of IPs. And certain IPs are blocked at the gateway. And the only VPN which can be used on _my_ network is the company's VPN, all others are blocked. (I had to go so far as to block my fav proxy/VPN site, Hide My Ass, 'cause some users were abusing it. Now _I_ can't use it on the company network, either. This annoyed me. The user who caused me to have to block HMA suffered.) I don't care if some user is a porn hound and likes to torrent German and East European porn (yes, there was one lad who really liked German shit and piss porn, and another one who was really fond of Russian double and triple anal. And you probably don't want to know about the boy who was fond of pony porn. I'm not making that up). I do care if they use up my bandwidth running their torrents, and I do care if the copyright holders track the torrent to my IP and complain. Those who try to access 'inappropriate content' at work get one warning, and then they're gone. And I get to define what 'inappropriate content' is, 'cause it's MY BLOODY NETWORK.

    Now, if they bring in a hotspot from a cellco and connect their personal system, laptop, tablet, whatever, to the hotspot, then they can do what they bloody like, so long as they're on break when they do it. There might be problems with HR ('hostile work environment') but not with my network, so I don't care.

  21. James O'Shea Silver badge

    Re: But viewing porn in Germany is ok

    "Kindly tell them that doing this is exceedingly stupid. Getting caught is one of the rather few ways to earn immediate termination, no realistic chance of fighting back. In practice this is about as bright as stealing stuff. Don't."

    Oh, there are idiots who think that they've come up with new ways to bypass security. They don't seem to understand that most of their new ways are merely new to them. There are also the idiots who try to steal stuff, ranging from office supplies (pens, paper, etc.) on up, not realising that the beancounters keep track of _everything_. And that there's a few beancounters who are there specifically to watch the other beancounters. Minor stuff, no-one seriously cares about. Major stuff will result in someone being hauled out in handcuffs. Enough minor stuff over a long enough time can add up to major stuff. One lad thought that it was unfair for him to be fired for taking a few reams of paper. He'd taken $400 worth of paper, one 500-page ream at a time, over the course of nearly a year. (We buy paper by the box of 10 reams. A box would be about $25-50, depending on quality. $400 worth of paper is a _lot_ of paper.) Around here, $300 is the lower limit for Grand Theft, so he _could_ have been charged with a felony instead of merely escorted to the door. When he complained and mentioned the word 'lawsuit', HR mentioned the phrase 'felony charges'. He shut up and didn't let the door hit him on the ass on his way out.

    I still can't figure out why he needed all that paper. What in God's name was he _printing_? I hope it was worth it...

  22. GrumpenKraut Silver badge
    Facepalm

    Re: But viewing porn in Germany is ok

    > ...most of their new ways are merely new to them.

    Yep, so true.

    Extra entertainment can be had when people make up the weirdest lies trying to wiggle themselves out. In one such case (Uni environment) was a student uploading a complete book of his professor using his full (real) name to a web site visible to everybody (go figure). He tried to convince us that all of that happened without intention "must have accidentally clicked some button ... yak yak yak".

    One of the most intense cases of Fremdschaemen I ever experienced.

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