A salutary lesson

Thank you, European Court of Justice!

You've done democracy a great service with your historic ruling on data retention. Finally, we have certainty on an issue that shouldn't be controversial in a liberal society in the first place: indiscriminate mass retention of all telecommunications data is a particularly severe intrusion on basic rights.

The ruling by the EU's top court corrects what governments, parliaments and security agencies across the European Union for years adjusted to suit their needs: the right of the individual to a private life.

And the ruling has consequences: in future, investigators fighting crimes of any kind, and that includes terrorism, will have to do without a tool that seems so useful. The question remains: what they will miss? It's a fact that security authorities have never provided evidence that showed they had greater success with the help of data retention than without it.

Authorities have access to numerous instruments to wiretap phones and computers in Germany - on the basis of existing laws, in cases where there is reasonable suspicion and with judicial authorization.

Focus on relevant matters

To that end, phone numbers and Internet protocols will of course have to be recorded - and technically, that amounts to collecting and retaining data. But on a completely different scale, and that's what matters.

Perhaps investigators will realize in light of the European ruling that less can be more. Now state investigators can concentrate on the basics since they no longer need to review billions of unimportant and thus useless items of data. The relevancy of the comparatively small amount of data that will still be retained in future will automatically be clear.

Apart from the purely practical side of the ruling, it has a psychological aspect that should not be underestimated.

Knowledge that the state may only legally breach its citizens' privacy in exceptional cases strengthens trust between the people and those in power. One must hope that the individual will be able to rely on the fact that his communication is largely protected from state control - and that is the best protection against mutual distrust.

Take people's concerns seriously

In an open society, this can never be more than an attempt at finding the right balance between security and freedom. No one can give a guarantee for absolute protection against all possible dangers.

Naturally, widespread fear of drug crime and terror attacks must be taken seriously. It was this that led politicians in Europe, and more so in the US, to feel that they had to resort to massive constraints of civil rights. But in the case of data retention, the judges at the European Court of Justice have now said that they proceeded without differentiation, reservations or exceptions.

What may sound like harsh criticism is actually clad in mild language. One could have said that the EU's security fanatics had closed their eyes and ears to what was going on around them. Warnings by constitutional lawyers and protests in the streets were ignored. In Germany today, protests are much weaker than they were over a planned population census in 1983 that was stopped by the Constitutional Court in a landmark ruling. The court saw the census as a violation of the fundamental right to self-determination concerning personal data.

What constitutional experts declared to be a state policy guideline almost 30 years ago has shaped German attitudes to how fundamental personal rights are to be handled legally. Few of the many so-called anti-terror laws that inevitably would have affected individual freedoms lasted for long. The same is true for the data-retention law which the Constitutional Court ruled unconstitutional in 2010. The European Court of Justice has now ruled in a similar vein.

Again, thank you!