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Spy check

Mirjam Gehrke / cmk January 21, 2014

Spying on private communications violates fundamental data protection rights, says Human Rights Watch in its annual report. They have called for a clear regulatory framework to keep intelligence services in check.

NSA spying, finger on a smartphone
Image: imago/avanti

Recent revelations by the British media showed that the US National Security Agency (NSA) has been collecting nearly 200 million text messages per day around the world. But these latest leaks from the seemingly boundless files of whistleblower Edward Snowden seem to have provoked little outrage.

"We have reached a stage where these things no longer surprise us," said Johannes Caspar, Hamburg's data protection commissioner, speaking with DW.

"It seems as if politicians aren't willing to limit the spying capabilities of the intelligence services to make them comply with the constitution," said Caspar. And, he said, this is what's most outrageous about the most recent revelations concerning the US intelligence agencies.For years, they have been collecting and storing communication data from both American citizens and foreign nationals, he noted, regardless of whether the data were generated in the United States or abroad.

"The US still does not recognize that everyone has a right to privacy," Kenneth Roth, the executive director of the rights organization Human Rights Watch (HRW), told DW. And President Barack Obama's speech on Friday (17.01.2014) did nothing to change that, he said, adding that Obama had "promised certain reforms," but that "the fundamental problem of a lack of respect for the right to privacy [was] still there."

Human Rights Watch Kenneth Roth
Roth: The US still doesn't recognize that people have a right to privacyImage: dapd

Privacy abolished by digitalization

Human Rights Watch has accused the US government of "largely abolishing the right to privacy in a world that has become dependant on electronic communication." But nobody is questioning the right of governments to sometimes make use of targeted monitoring in the interest of national security, wrote HRW in its annual report presented on Tuesday (21.01.2014) in Berlin.

But what is still private in the age of digital communication? On social networks, people make their most private thoughts public. Cell phone conversations in the street range from the inconsequential to the intimate. Consumers' purchasing habits are revealed online.

Following Snowden's revelations, US citizens protested against the NSA in WashingtonImage: picture-alliance/AP Photo

"In the digital age, privacy is no longer seen as an isolated, individual sphere," said Caspar. "Today, privacy is seen as the right of the individual to decide what personal information he shares with others, and what he does not want to share." To this end, Germany's Federal Constitutional Court has coined the term "informational self-determination." "It's a matter of individual free choice to release data or keep it to oneself," said Caspar.

Right to data protection

In Germany, the right to informational self-determination, however, is not explicitly covered by the German constitution. The Federal Constitutional Court developed the right as an exceptional characteristic of the personal privacy law in connection with a ruling on what was at the time a controversial population census in Germany in the early 1980s. Globally, the fundamental right to informational self-determination is laid down in the International Covenant on Civil and Political Rights. However, this agreement is not legally binding when it comes to data protection and privacy protection.

Following the Snowden revelations in 2013, the UN General Assembly adopted a resolution on the protection of personal data tabled by Germany and Brazil. For Johannes Caspar, this resolution is a step in the right direction, but it's still not enough. "Privacy protection must also be guaranteed with respect to intelligence services and governments," he said.

ACLU Protest NSA in Washington ARCHIV Oktober 2013
Caspar: The German government should exert more pressure on the United StatesImage: HmbBfDI/Thomas Krenz

But after Obama's speech, and with no mention of the "no-spy-agreement" called for by Germany, there is little hope that the US will recognize the fundamental right to privacy and informational self-determination. "The German government should exert more pressure on the United States. But this is also true at the EU level. We need a common European position on data protection that puts us on par with the US," said Caspar. The EU has been discussing data protection regulation since 2012.

A new European Parliament will be elected in May. Until then, there will likely not be a decision on data protection. And in the US, emails and cell phone data will continue to be collected and stored - no longer by the intelligence agencies, but by the telecommunications companies - and their primary task is not the protection of fundamental rights.