Grundgesetzt macht frei!

May 25th, 2006

On 22 May the German Constitutional Court has declared illegal under the German Constitution the practice of screening data across several private and public databases in order to find potential terrorists (“sleepers”). Several federal states will now have to change their police laws. The decision does not make data screening (“Rasterfahndung”, literally: “grid investigation”, usual transliterations: “dragnet investigation” or “data trawl”) completely illegal, but binds it to very narrow conditions. The measure is still legal for investigations in specific criminal cases, as it was used against the left-wing guerrilla RAF in the 1970s, when the “Rasterfahndung” was invented. But for crime prevention purposes, it can only be done in the presence a concrete danger for the lives or liberties of persons or for the existence of the Federal Republic of Germany or a federal state (Land). This requires factual indicators for an imminent attack. A general threat condition or foreign tensions like after 9/11 2001 are not sufficient.

The future UK Bill of Rights will similarly protect the population against State-sponsored data trawling, of course it will in fact go further than the German Constitution as the Bill of Rights will only contain attestations of our Rights and not the rug pulling of their Constitution.

Even so you can see that a Constitution that protects peoples rights ‘works’ when the State isn’t allowed to disregard it into oblivion (c.f. USA)

As their website seems to be unresponsive I shall blockquoth the rest for you below (at least read the very last line.), incidentally there is another article about German Greens are questioning the legality of the EU directive on mandatory retention of communications traffic data, you should subscribe!

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The Federal Police Agency (Bundeskriminalamt) had coordinated such screenings, in cooperation with the state-level police authorities after the terrorist attacks of 11 September 2001. Universities, private companies, private security firms, public transport institutions, facility providers, municipal authorities, and the Federal Register of Foreign Residents were required to submit comprehensive information they had on anybody matching a set of criteria (male, aged between 18 and 40, student or former student, country of origin mainly Muslim) to the state police agencies. The latter did a screening run for matches across the different submitted databases that combined included more than 8 million people. The 31 988 hits were stored in a central file called “sleepers” and again screened by the Federal Police Agency against a database that included up to 300 000 persons who held a pilot license, were supposed to be dangerous, or matched some other criteria. The remaining several thousand persons (matches) was manually reviewed by the state police agencies. The whole exercise did not lead to a single terrorist suspect or prosecution.

The plaintiff, a Morrocan citizen who studied in Germany in 2001, argued that his right for informational self-determination was breached, that the screening was an especially severe breach of fundamental rights because it took place unbeknownst to the people affected, that it was not proportionate because of the lack of factual indicators for an imminent terrorist attack in Germany, and that the criteria were discriminating him and fellow Muslims on the basis of religion. The lower courts had overturned his arguments.

The official data protection commissioners, the opposition parties Greens, Liberals and Socialists, and civil liberties groups applauded the court decision and demanded an immediate stop of plans for similar measures like communications traffic data retention, license-plate screening, or the creation of new investigative powers for the Federal Police Agency for the prevention of crimes. A spokesperson of the federal Ministry of the Interior said that in international terrorism, there was only a thin line between a general and a concrete threat condition, making it difficult to apply the decision. The Bavarian Minister of the Interior, Gnther Beckstein, called the decision “a black day for the effective fight against terrorism in Germany.” The association of student representatives, which had supported the plaintiff, demanded a “personal apology” from the responsible authorities for the illegal and unconstitutional discrimination of foreign and Muslim students in Germany.

Up to eleven federal states will now have to change their police laws and criminal procedures acts. The decision will also have an impact on the discussion about the legality of mandatory communications data retention in Germany. The Constitutional Court explicitly re-emphasised in the reasons given for the judgement the “strict prohibition, beyond statistical purposes, of the storage of personally identifiable data on stock.” (“auf Vorrat”). “Vorratsdatenspeicherung” – literally: “data storage on stock” – is the German term for data retention.

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