Erosion of Privacy
January 17, 2008
The German "Eavesdropping Law" was passed by parliament on Jan. 16, 1998, amid a huge public outcry over concerns that people's private sphere was being invaded. The law allowed authorities to secretly plant bugs and microphones inside people's homes -- a domain which was previously seen as inviolable under the country's constitution.
The then justice minister, Sabine Leutheusser-Schnarrenberger from the liberal Free Democrats (FDP), even stepped down from her position after the FDP decided to support the bill.
Germany's highest court later declared large sections of the law unconstitutional, in 2004. Since then, however, the government has passed or proposed several new pieces of legislation which are seen as a further invasion of civil liberties.
"If you take all the security measures used by authorities as a whole -- such as telephone surveillance, Internet surveillance, dragnet investigations, and the proposal to install spyware on computers, then the magnitude of state control of private citizens is quite apparent," said Frederik Roggan, a lawyer and acting chairman of the Humanist Union, a civil-rights group.
Germany falls in privacy rankings
Although it still has a better privacy protection record than many other countries, in an annual ranking of 75 nations released by the London-based group Privacy International, Germany slipped from first place to seventh.
Germany's implementation of an EU data retention directive, which went into effect at the beginning of 2008, came in for particular criticism in the report, which was released earlier in January.
The legislation calls on phone companies and Internet providers to store data for up to six months and allows police to access the information with a judicial warrant.
However, in the biggest mass lawsuit in the history of the Constitutional Court -- Germany's highest court -- some 30,000 citizens, privacy activists and civil rights groups filed a complaint against the telecommunications law at the beginning of the month.
"The government has broken a taboo," said Roggan, who is one of the lawyers preparing the suit.
"The main objection is ... that people who aren't even suspected of committing a crime and who aren't a danger are forced to have their entire telephone and online communications saved for a six month period, just in case they become a suspect in the future," he said.
Privacy advocates have also criticized the requirement for electronic fingerprints to be included within all new German passports issued since November 2007.
By using the data, which also includes an electronic photograph, border guards can see whether passport and carrier actually belong together, theoretically making the document more secure.
Opponents of the measure argue the electronic information could be lifted from the chip and used by criminals intent on identity theft. In addition, fingerprint files held at local registry offices while the passport is being processed -- which can take up to six weeks -- can be accessed by police.
Government pushes cyber-spying
Another major source of controversy is government proposals to smuggle spyware onto suspect's computers in order to secretly keep track of Internet use, e-mails, and other electronic data. Authorities have defended the surveillance measures, saying they're necessary to keep pace with terrorists and organized crime.
"The Internet has become the decisive medium," August Hanning, deputy interior minister and former head of the foreign intelligence agency, told the Constitutional Court in Karlsruhe at an October 2007 hearing into the legality of cyberspying in the state of North Rhine-Westphalia.
"Germany is part of a global danger zone and can at any time become the target of terrorist attacks," Hanning said.
In Sept. 2007, German police arrested three Muslim men they say planned car bomb attacks around Germany and belonged to a militant Islamist group linked to al Qaeda. News reports said Germany relied heavily on electronic intercepts provided to it by the CIA to foil the plot. Because of Germany's own strict rules on police and security methods, police could not have gathered sufficient evidence to arrest the men without outside help.
According to Ulrich Sieber, the director of the Max Planck Institute for Foreign and International Criminal Law, cyberspying has the potential to be a "powerful instrument" in the fight against organized crime, but at the same time it is a "serious threat to privacy."
"Consider the amount of data which you have on your computer -- you have details about your health insurance, about your tax declarations, private letters and maybe your diaries," Sieber said.
Sieber added he believes the Constitutional Court will declare North Rhine-Westphalia's state cyberspying legislation illegal because the provisions contained in the law were too broad.
However, he said he expected the court's judgment to very clearly state "in quite a restrictive way" how future legislation could provide for online surveillance in "limited cases."
The federal government has already stated its intention of introducing spyware legislation, but has said it will await the court's verdict before doing so.