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March 2, 2010

The highest German court has overturned a law allowing anti-terror authorities to save data on phone calls and e-mails. It's only partly a victory for data protection advocates, says Deutsche Welle's Marcel Fuerstenau.


The storage of data without good reason violates the privacy of telecommunications, which is anchored in the constitution, so it is void; all data stored must be deleted.

At first sight, the ruling by the highest German court seems to be an outright victory for the plaintiffs. But that is not necessarily so. According to the court, mass data storage as such is by no means incompatible with the constitution - the existing legislation is.

Basically, the judges are accusing lawmakers of doing a sloppy job. That was true, too, in the case of the law allowing spying on private computers, and in the case of the aviation security act that was aimed at allowing authorities to shoot down kidnapped airplanes even if innocent people were aboard. The court approved of neither of these laws.

That does not mean that plans for more supervision in the name of security have been shelved. On the contrary: Tuesday's ruling reads like a briefing. Stored data must be kept separately, it must be encrypted, and authorities must be able to control it in a transparent matter. If these preconditions are fulfilled, then a judge could allow authorities to access the data. Another condition is that there must be particularly serious suspicion of a crime, which means a person or a community have to be seriously physically threatened.

Marcel Fuerstenáu

That sounds like a reassuringly high barrier to accessing data, but it is not as simple as that. In the fight against terrorism, the state tends to show exaggerated caution. Over the years, there has been a rise in telephone and computer surveillance. In 2008 alone, police monitored telephones and computers in more than 5,300 cases; the statistics do not list preventive eavesdropping. That leaves room for speculation about the number of unreported cases. This practice does not increase citizens' trust in their country.

In any case, the judiciary does not control the secret services; they are controlled by a parliamentary committee that is sworn to secrecy. All the same, media have repeatedly uncovered misconduct by the Federal Criminal Office (BKA) and the Federal Intelligence Service (BND) in the fight against terrorism.

The opponents of exaggerated security laws can find consolation in the fact that the public is critical and it keeps an eye on those in power; as they did in the current case of mass data storage. A partly successful class action suit has put an immoderate legislator in his place.

There is reason for cautious optimism that civil rights and liberty will be dealt with more carefully in the future. For one, the current justice minister Sabine Leutheusser-Schnarrenberger was one of those who filed the suit against the data storage law which was pushed through by a previous German government.

And on a European level, the European parliament now has more of a say in the matter than it did, thanks to the Lisbon Treaty. Mercifully, the era of decisions being made by the EU Commission on its own is over. In September, the directive on mass data storage is up for critical examination by the European parliament. The German constitutional court's ruling might be helpful.

Author: Marcel Fürstenau (db)
Editor: Michael Lawton