Online Surveillance
February 28, 2008
The court decision follows the same guideline as many other verdicts from the Constitutional Court in Karlsruhe: Security laws may not undermine basic rights.
The judges reached a similar conclusion in deciding whether to allow authorities to bug private apartments or shoot down passenger planes that had been hijacked by terrorists. Human and civil rights take precedence over the nearly insatiable need for security cultivated by some politicians.
The now invalid law in North Rhine-Westphalia had allowed authorities to access a suspect's hard drive and keep it under regular surveillance -- under the condition that they expected to find evidence of anti-constitutional activity.
Such a massive intrusion should not be possible on such vague grounds, the Karlsruhe court decided. Rather, the state may secretly spy on someone only if there is strong evidence that personal safety, lives, freedom, state property or the foundation of human existence are endangered. And only with permission from a judge.
Those are high hurdles. And that's how they should be.
It wasn't a coincidence that court president Hans-Juergen Papier said the decision had implications beyond the case in North Rhine-Westphalia. His words were directed at Interior Minister Wolfgang Schaeuble, who is planning a federal law allowing for online surveillance of crime suspects.
Schaeuble's credo is that the threat of terrorism is omnipresent, invisible and incalculable. Therefore, the state should take such measures in order to prevent this danger. According to Schaeuble, all surveillance and combat instruments should be able to be used even in fully abstract situations of danger.
Fortunately, Karlsruhe clamped down first. Basic rights aren't disposable regardless of the need for security. The criteria for state action must be very concretely defined, particularly when a basic right is so massively intruded upon. Innocent people should not be targeted by the state with such sweeping, preventive blows.
Wednesday's court decision recalled yet another axiom: Not only do we need protection by the state but also from the state.
If every citizen is treated like a potential terrorist and his or her private sphere is monitored, the state will have a hard time convincing its citizens that it also wants to protect them.
Wolfgang Schaeuble said he will take the court decision into account. The question remains why these kinds of issues always have to be resolved in Karlsruhe and not first in Berlin.
It seems as if politicians responsible for security always want to test the boundaries -- and the Constitutional Court is then forced to draw the line.
Daphne Antachopoulos is a reporter for Deutsche Welle specializing in German domestic and foreign policy. (kjb)