International Law

German Constitutional Court Surveillance Decision

By Karl-Friedrich Lenz

I have just finished translating the decision of the German Constitutional Court on the law implementing the 2006 Surveillance Directive into Japanese (all of it), and posted it here. I am looking forward to discuss it on May 7 in a meeting of the Japanese Academic Study Society for German Constitutional Law. Previous coverage at the EFF blog by Eddan Katz is here.

While the Court did hold the German implementing law unconstitutional, making it seem as if the plaintiffs had won something, on the basic question liberty lost. Germany is still obliged under EU law to implement preventive data retention. Even if that will be done in a slightly different way required by this decision, the decision does not hold preventive data retention as such unconstitutional, as it should have done. Treating all your citizens all the time as potential criminals is not compatible with any meaningful right to privacy of telecommunications. Not one of the eight judges deciding the case was on the side of the plaintiffs and on the side of human rights protection in this basic question. Two of them even would have agreed with the implementing measures.

This total failure of the Court might be explained partially by the fact that the human-rights violating outrage in question was not enacted as a German law, but rather at the EU level. The German Constitutional Court has given politicians at the EU level the right to violate the human rights formerly guaranteed in the German Constitution without limits. In the past decisions on this fundamental question, the German Court told citizens to seek human rights protection against EU legislation elsewhere (with the European Court of Justice).

While it is a sorry state of affairs to have total surveillance of all citizens all the time affirmed by all judges, there is one positive aspect even to this decision, hidden in paragraph 218 of the ruling. To quote just one sentence:

“Dass die Freiheitswahrnehmung der Bürger nicht total erfasst und registriert werden darf, gehört zur verfassungsrechtlichen Identität der Bundesrepublik Deutschland.” (It is part of the constitutional identity of the Federal Republic of Germany, that the citizens’ use of their freedom may not be completely recorded and registered).

That is “preventive Constitutional law”. While, sadly, the decision gives total surveillance a pass this time, the majority also says that this is as far as they are willing to go. Even the EU legislator may not use this as a model for other data retention laws, for example on library records, surveillance cameras, visited Internet pages, or use of transportation. That is a very vague threat of stopping further total surveillance projects, but it is backed up with a reference to the 2009 decision on the Lisbon Treaty, where the Court has actually asserted the right to control even EU legislation for compliance to the fundamental values of the German Constitution.

This is the first time that the German Constitutional Court has actually dared to declare some kind of limit to legislation at the EU level. That is some kind of progress.

As far as Germany is concerned, opponents of total surveillance are reduced to campaigning for political repeal of the Surveillance Directive at the EU level. One way or another, this question will still get to the European Court of Justice, who will then have an opportunity to show citizens if the brand new Article 7 of the Charter of Fundamental Rights given legal force by the Lisbon Treaty actually guarantees some minimum of respect for private communication. And one way or another, this will be decided by the European Court of Human Rights.

Full post as published by Lenz Blog on April 13, 2010 (boomark / email).