Constitutional Rights
March 13, 2008
German court decisions of late -- most recently one on license-plate surveillance -- have brought the ongoing debate between civil libertarians and those who advocate tighter national security, back into the spotlight.
In a ruling on Tuesday, March 11, the Federal Constitutional Court in Karlsruhe nixed the Interior Ministry's plans to keep track of where cars travel.
The court said indiscriminate license-plate checks in the states of Hesse and Schleswig-Holstein were unconstitutional because they were carried out area-wide and without specific cause.
Privacy activists welcomed the court's move to curb the state's appetite for gathering personal data about its citizens. But some say they are worried about how frequently the constitution is being tested.
Decision follows spyware debacle
The lawyer for the plaintiffs argued that automatic checking of license plates was equivalent to "complete surveillance" of a large and arbitrary section of the general population.
It was the second case of late which saw the Constitutional Court reining in federal security agencies and politicians keen to boost security in Europe, after the Sept. 11, 2001 terrorist attacks in the United States.
In late February, Germany's highest court ruled against a law which allowed widespread computer searches using "Trojan" spy software in the state North Rhine-Westphalia.
The court defended privacy in its decision, saying such searches could only be allowed if there is evidence that "legally protected interests," like human lives or state property, are in danger. That decision signified the establishment of a new kind of basic right, judges said at the time.
Privacy activists lauded the rulings -- with reservations.
Politicians are misguided, critic says
"Basically, we welcomed the court's decision, but it could have gone farther," said Florian Glatzner, a spokesman for foebus, a public-interest nonprofit that fights for data protection. "We would have preferred if they also decided on a new basic law that says everyone has a right to move around without being observed."
The real problem with the legal battles is that individuals have to keep fighting for their constitutional rights in the first place, Glatzner said.
Instead of just "trying to boost their political profiles" by enacting laws and then waiting for a court challenge, politicians should determine whether or not a law is constitutional in the first place, he argued.
"The politicians are being shown that by first enacting laws and then seeing whether or not they are unconstitutional is the wrong way to go," Glatzner said.
Data-retention ruling outstanding
The justices at the Federal Constitutional Court are expected to hand down a decision before the end of April on the controversial practice of data-retention.
Under a law that went into effect on Jan. 1, phone companies are required to keep records of the time and date of all phone calls, e-mails, text messages and faxes for six months. In the case of a legal prosecution, they would be obliged to provide the information to authorities.
The law came about in the wake of an EU directive forged in reaction to the terrorist attacks on trains in Madrid in March 2004, in which 191 people died. The perpetrators were tracked down using mobile telephone data. The law is meant to be used to fight terrorism and serious crime.
Essential tool against terror -- or political device?
Proponents of the law argue that it is an essential tool to hunt down terrorists. Speaking in November 2007 when the law was passed, German Justice Minister Brigitte Zypries emphasized that the bill was intended to enhance the detection of terrorist plots and other serious crimes all over Europe.
Siegfried Kauder, a parliamentarian and member of the Christian Democratic Union, said those who evoked horrors of an Orwellian surveillance state were playing down the importance of domestic security.
"We don't want transparent people, we want transparent criminals," Kauder said at the time.
However, Glatzner argued that targeting the general public, rather than suspected criminals, was unlikely to help in the fight against terrorism.
Dangers of eroding rights
"Monitoring people who are not under suspicion of any wrongdoing is the wrong way to go about it," he said. "They should first have a suspect, and then do the monitoring."
Terrorists can be skilled in getting around the technical restrictions, but such rulings end up limiting personal freedom of everyday folks, Glatzner added.
"If people feel they are being observed, then they may not do something they would otherwise do," he said. "Nothing illegal -- but maybe they wouldn't go to a political demonstration, because they would be afraid of being put under pressure."