Unlike the US, Germany has a constitutional court that doesn’t kowtow as soon as the government yells “National Security”. Whereas the US Supreme Court has chosen to rewrite Catch 22 as a legal judgement, saying effectively that no one has standing to challenge secret government surveillance programs, because they are secret, hence no one can prove (using information the government will allow to appear in open court) that they have been affected.
Deutschlandfunk’s science programme Forschung Aktuell has been reporting this week on problems of information technology, security, and privacy, and today I learned (transcript in German)
In 2001 the police chief of Baden-Württemberg Erwin Hetger demanded a programme of advance data storage, by which all connection data of web surfers in Germany would be stored for six months.
“I think we cannot allow the Internet to become effectively a law-free zone. Hence my clear and unambiguous recommendation: Whoever moves about on the Internet must be willing to accept that his connection data are stored for a fixed period of time.”
The Bundestag did, in fact, pass such a law in 2007. But in 2010 the Constitutional Court annulled the law.
While such advance data storage is not necessarily impossible under the German constitution, the constitutional requirements for such an action would be very strict, and were not satisfied by the law that was passed.
The president of the Constitutional Court Hans-Jürgen Papier specifically emphasised that if such data were to be stored, it would have to be done in a more secure way than the law had required.
The comparison of this process — where the basic parameters of privacy rights and government snooping are set by the normal democratic process of legislatures passing laws that are then reviewed in publicly accessible court decisions — just makes clear how supine the US courts and Congress have been, as has been the UK parliament.
That comment,
We cannot allow the Internet to become effectively a law-free zone. Hence my clear and unambiguous recommendation: Whoever moves about on the Internet must be willing to accept that his connection data are stored for a fixed period of time.”
deserves some extra attention. It’s one of those statements that sounds pretty plausible when reflected on superficially. Who wants a law-free zone? But suppose he said instead
We cannot allow private homes to become effectively a law-free zone. Hence my clear and unambiguous recommendation: Whoever hides behind closed doors to carry on a conversation should have his words recorded and stored for a fixed period of time.
Common Infirmities 