As regimes in the US, the UK, France, Italy, Australia, New Zealand and several other western and western-style democracies seek to take ever more overt control over the Internet, Germany's highest court has effectively reversed a law that permitted the county's law-enforcement agencies to collect and keep records of telephone calls and emails sent and received by the country's citizens. Martyn Warwick reports.
The Federal Constitutional Court ruled that the law was in direct violation of every German citizen's inalienable constitutional right to engage in "private correspondence" without fear of the state putting it under surveillance and concluded that the legislation was a "grave intrusion" into the right to privacy. The court added that the law as it stood was unbalanced and partial as it failed to place the right to privacy in countervailing balance with the state's responsibility for national security.
The court also ruled that that data retention is in itself neither wrong nor unconstitutional in principle but that the existing law was very badly framed and allowed state agencies to go too far down a road that was so well trodden in Germany's recent past. In other words. "Go away and do it again, and do it properly this time."
More than 35,000 ordinary Germans has submitted statements to the court complaining about the national law that came into being as a result of European Union directive issued in 2006. Aimed at combatting terrorism, the directive required Germany's telcos operators and service providers to capture, keep and make available to the authorities records of every phone call and email made or received by individual subscribers. The same applied to every Internet site visited and page viewed.
The records were to be kept for six months - a much shorter period than the years and years on end being demanded by administrations in the US and the UK where the rights of the individual now often take a poor second place to the exigencies of the agencies engaged in the endless and ill-defined "war" against terrorism.
Even though the German system seems almost benign in comparison with what the British government is demanding, Peter Schaar, the German data commissioner with responsibility for security says, "Massive amounts of data about German citizens who pose no threat and are not suspects is being retained. This is not acceptable in a civilised society."
The Federal Constitutional Court obviously agreed and ordered changes to the legislation accordingly.
Thus access to subscriber data can now only be obtained by properly overseen court order and then only in the case of provable "concrete and imminent danger."
The court also ruled that all subscriber information must be held by a private civilian company that will be subject to rigorous legal oversight and control and that it must be dispersed across many servers and sites to ensure that everything is not kept in one place. This provision effectively prevents Germany's law- enforcement agencies well-documented propensity to indulge themselves in "mission creep".
The court ruling adds, "The disputed instructions neither provided a sufficient level of data security, nor sufficiently limited the possible uses of the data, and such retention represents an especially grave intrusion to individual liberty".
The court said every bit of data (forgive the pun) already stored must be deleted immediately. I'll bet the apparatchiks at the Ministry of Truth loved that.
Interestingly, and pointedly, the court also observed that as data on and generated by private individuals is collected covertly, people experienced "a vague and threatening sense of being watched" - which is, of course exactly what is happening.
It further added that the secret collection of data "causes a diffusely threatening feeling of being under observation that can diminish an unprejudiced perception of one's basic rights in many areas."
Too right, and if you want to see the corrosive effects that such insidious surveillance has on human relations and our humanity in general I exhort you to watch Florian Henckel von Donnersmarck's superb and disturbing film, "The Lives of Others".
It is to the credit of so many ordinary Germans that they brought sufficient pressure on the courts to get things changed. Opposition to the propensity of Chancellor Angels Merkel's administration to impose anti-terrorism measures that trample over citizen's rights is growing apace.
After all, Germany has been here before, railroaded into knee-jerk legislation that is passed in haste and repented at leisure. Both the Nazis and the communist East German state spied on their own countrymen, collected massive amounts of information about everyone's life, public and private, and abused the power that gave them over people.
Now though a line has been drawn. Let's hope it is wide enough, deep enough and has been drawn in time.
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