Sound legal support for the digital transformation

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Encrypted WhatsApp messages, anonymous phone calls, you name it: Criminals too are upgrading their information technology. “Plenty of new surveillance powers have been introduced in an array of security legislation in recent years so that encrypted communication can be intercepted,” Professor Mark Zöller, a legal expert, explains. “Lawmakers are likewise constantly upgrading their systems to track down the perpetrators behind child pornography, terrorism and extremism.” At the same time, legislators have found themselves caught in the tension between reasonable powers to protect the population at large and the defense of other fundamental rights. “Freedom of the press, the protection of sources, client-attorney privileges: These are rights that must not be overlooked as technology races ahead,” Zöller argues. “Our job as legal professionals is to walk the lawmakers through this process such that everything stays firmly within the rule of law and we don’t end up being spied on in our bedrooms.”

Mark Zöller has held the Chair of German, European and International Criminal Law and Criminal Procedural Law, Commercial Criminal Law and Digitalization Law at LMU Munich since October 2020. Key areas of his research also include police law, intelligence service law, data protection law for security authorities, responses to terrorism and political extremism and, by no means least, legal matters in the digitalization space. Such a broad spectrum of interests reflects how deeply these different areas of law interlock in the modern world.

A criminal lawyer by trade, Zöller says it is important to look beyond your own backyard and see what is happening in other areas of law. “I want to see the big picture,” he states. “In the fight against terrorism, for example, it is not much use knowing how the offenders should be punished after an attack. You also need to know how to clear up the case on a structural level and prevent further attacks.” Criminal lawyers with an interest in other areas used to “often be dismissed as a bit crazy,” Zöller smiles. That, however, has changed completely: “I get the feeling that criminal lawyers who are interested in other areas are especially in demand today.”

Even while writing his doctoral thesis at the University of Mannheim, where he had earlier studied law, Mark Zöller was already looking beyond criminal law alone and concerning himself with “information systems for the police, public prosecutors and intelligence services.” After completing his teaching practice, he qualified to lecture in criminal law on terrorism, which in turn has touchpoints with a wide range of legal disciplines “from pre-vention to repression.” In 2008, Zöller answered the call to become Professor of German, European and International Criminal Law, Criminal Procedural Law and Commercial Criminal Law at Trier University, where he also led the Institut für Deutsches und Europäisches Strafprozessrecht und Polizeirecht (Institute of German and European Criminal Procedural Law and Police Law). As a visiting research fellow, he also spent some of this time conduct-ing research at the University of Southern California in Los Angeles and, for example, at the University of Hong Kong. LMU Munich became Professor Zöller’s workplace last October.

New Institute IDRIS

“I was very pleased to receive the call for this first Chair of Criminal Law at the University that also embraces law in relation to digitalization,” Zöller says. “This had always been my niche, so now I can flag that officially.” It was a logical step to also found the new Institut für Digitalisierung und das Recht der Inneren Sicherheit, IDRIS (Institute for Digitalization and Domestic Security Law). This research unit grew out of a conviction that, in the age of globalization and digitalization, a big-picture perspective is critical, and that access is needed to scientific knowledge which derives from all areas of law as well as external disciplines.

In collaboration with the German Bar Association (DAV), IDRIS is currently planning a pro-ject that could help to better coordinate different areas of law in practice. “In the case of the terrorist Anis Amri or the murder of Walter Lübcke,” Zöller explains, “we saw that coordi-nation on the police side was suboptimal even though the perpetrators had already been picked up by various authorities.” To avoid such scenarios going forward, the aim is to compile a best-practice advisory for lawmakers. That is important, because Professor Zöller receives numerous requests for advice from the political echelons. “There is so much uncertainty,” he notes. The legal expert thus regularly steps in as a consultant and expert witness for ministries of justice, departments of the interior and political parties, for example, but also as an expert in legislative processes and as an attorney for actions brought before the Constitutional Court.

Zöller’s activities also have an international reach: “German criminal law is still a top ex-port in some parts of the world.” As an adviser to the political and scientific communities, his services are thus much in demand in many countries across Southern Europe, South America and, in particular, the Far East. Only recently, the National Taiwan University in Taipei presented him with the Tung-Ming Tsai Professorship for International Criminal Law.

Back in Munich, Professor Zöller’s first round of seminars on criminal law and digitalization have gone down very well. “Digital natives themselves often share new ideas and sug-gestions with me,” he says. “That is a lot of fun.” Nor is there any shortage of requests regarding doctoral theses in the field of digitalization law. As ‘tech savvy’ as he obviously is, Zöller himself is constantly learning and adding to his understanding of digital development: “If I didn’t do that, the stuff I teach this year could be obsolete by next year.” And there are some digital innovations that legal professionals need to have explained to them by IT experts. Only then can the former fully grasp the relevant legal context – and “put the brake on if necessary” when it comes to new digital surveillance powers.