German Constitutional Court: Don’t Let America Spy on Germans

A number of you have passed me this breaking news from Germany:

Vast amounts of telephone and e-mail data held in Germany must be deleted, the country’s highest court has ruled.

The constitutional court overturned a 2008 law requiring communications data to be kept for six months.

The law – designed to combat terrorism and serious crime – required telecoms companies to keep logs of calls, faxes, SMS messages, e-mails and internet use.

But nearly 35,000 Germans lodged complaints against it, arguing that the law violated their right to privacy.

Responding to the thousands of formal complaints, Germany’s constitutional court described the law as a “particularly serious infringement of privacy in telecommunications”.

Not only will this make it harder for Germany to spy on its own citizens, but it is further resistance, in Europe, to the US demand (embraced equally by the Obama Administration as the Bush Administration) that all communications be accessible for surveillance.

Scribe has a diary over at TalkLeft working from German sources, including the news that this is the biggest class action suit in German history.

The judgment from Karlsruhe concludes (places the period to) the biggest class action suit in the history to date of the Federal Constitutional Court.  Almost 35,000 citizens participated in the complaint against the statute for counterterorism and crime tracking.  Set forth two years ago, together with the statute, was an EU directive under which [t]elephone companies are required to retain and store the connection records of their customers for six months.

Among the plaintiffs, besides [Federal Justice Minister Sabine] Leuthnisser-Schnarrenberger, were further prominent politicos, among them FDP politician Burkhard Hirsch, who was simultaneously a plaintiff and attorney for the group.  The Green politician Volker Beck had, together with more than 40 delegates of their party, joined the complaint.

What a novel concept: thousands of citizens objecting to having their private communications collected and surveilled.

Pity we’ll never see such a groundswell here.

24 replies
  1. Sara says:

    Germans are very sensitive on this matter of privacy — it has to do with a fairly nasty history of Nazi phone tapping, and then the findings of the rest of the world when East Germany opened up, and they found the miles and miles of sealed jars that archived the smell of individual citizens and quite a number of visitors. (Better for the border dogs to check you out.) Live with those realities for nearly fifty years and yea, you too would consider joining a class action suit.

  2. scribe says:

    Thanks for posting, EW. But I think most people (including you) have missed what is perhaps the most striking part of the judgment: that the Court required the erasure – “immediately” – of the databases already gathered.

    Therefore, it’s not enough to just stop the data collection, but what has been done has to be undone.

    And, FWIW, when it’s done to Americans by Americans, the Americans who get surveilled have no standing to protest, let alone sue.

    • DWBartoo says:

      A twisted and convoluted legal system – where those most in need of it, far too often, do not have … “standing”.

      If issues cannot be raised, it follows, therefore, that nothing is amiss …

      And those who dare to persist, in the face of this prejudice, are uncivil and arrogant “unprivileged” belligerents.


    • timbo says:

      That’s the way the surveillance state can be saved–by erasing our rights to discover what has and is happening to us.

  3. DWBartoo says:

    Thank you, EW and scribe;

    One notes that a spokesman for the German police regards the decision as, “slatternly-slutty-sloppy statutory formulation” … leading to “an important investigative tool being slapped out of the hands of the police.”

    Too bad the Mods at FDL weren’t on “hand” to deal with that language.

    At least the Court, in Germany, isn’t willing to make judgments on the basis of mere assumption … Clearly the German Court looked at fact and were not swayed by bombast.

    Good on ’em!

    Great on ’em, even.


    • scribe says:

      That construction is my translation of the adjective “schlampig” used by the police spokesman and quoted in the MDR article I translated. “Schlampig” translates as “blowzy, draggled, frumpish, grumblingly, slapdash, slatternly, sleazily, slipshod, sloppy, slovenly, sluttish, sluttishly, slutty” and I picked the set of words which seemed to best translate the meaning, given that the speaker was the head of a Police Union, speaking like a cop.

      FWIW, I guess the mental image of “schlampig” might be Cyndi Lauper on a bad wardrobe day, or the early Madonna; I recall that adjective being used to describe her (clothes) in the German press in the early days of her career.

      No matter – it’s pretty rude to be using it against the judges of the constitutional court and their judgment, let alone for publication, and it shows how high the feelings run about this decision.

      • DWBartoo says:

        My German is rusty, from long disuse, scribe, so I am most willing to accept both your translation and your further elucidation.

        You’ve well-conveyed the gist.

        Thank you, again, scribe.

        (For the depth and consideration of ALL of your comments and the links which you so often provide.)


      • Mary says:

        Do you think he was addressing that to the court and its opinion, or to the statute? I took it to mean that he thought the statute had been drafted in a crappy way that wouldn’t hold up (on judicial review) and so they are losing a tool that could have been helpful if the statute had been better drafted (maybe with more protections). ?

        I’m also wondering what will be the effect with respect to records the telecoms and others keep to the extent they argue they are keeping them for business purposes or purposes not related to the now-stricken law. IOW, can the telecoms keep the records anyway and the Police et al still gain access by warrant, it’s just that now the telecoms etc aren’te be statutorily required to keep the records?

        I still think one of the fascinating things about all this is no one delving into what the telecoms are doing with, for example here, German to German communications that the telecoms operating in Germany are handing over to the US for storage and access. So, for example, if the US TSP pays them off for keeping all German to German communications as “foreign” communications for US access or diverting all those German to German records to NSA for NSA to keep, then what? Are any foreign courts going to be asking the telecoms doing business in their countries about what the US claims that the US can access all “foreign to foreign” communications mean vis a vis how the telecoms are acting?

        I guess it’s nice to be protected from your own gov, but if it isn’t the German gov that is kidnapping guys named el-Masri for torture and then not providing any judicial review or justice – – maybe there should be another point of concern.

        • scribe says:

          As I understood the German Police Union’s head, he was addressing his insult to the Court and its interpretation of the statute. He’s a cop, addressing a decision by judges who just took away one of the cops’ biggest toys – the ability to get all of someone’s electronic communications without a warrant. Think how US cops bark about a judge tossing evidence because they violated the Constitution, or how they warn they won’t be able to solve crimes if they have to obey the Constitution. Same attitude; cops are the same the world over.

          As I understand the German reporting on the decision, what was declared unconstitutional was the dragnetting of all electronic communications combined with the requirement that they be stored and accessible to the cops and intel folks. The access was probably at their whim.

          What is now required is that the cops/intel guys get a judicial warrant, and the electronic communications can then be reviewed by the cops/intel folks in secrecy, but they are under judicial supervision.

          The international aspects of this are a little deep – and too complicated for me to try to suss out, mostly because I don’t understand them. I would suspect that the US is still capturing anything they want (Which means everything) and that it can find its way to whomever the US wants to send it to, in trade for whatever they wish to trade for.

      • Anastasius says:

        The correct translation in this context is sloppy, no degrading or insulting (slutty)subtext.

        The union guy is pissed off that the judges took away his toy because the law was formulated to broadly and imprecise (hence the court leaving the door open for “improvements”). His anger is directed at the lawmakers, not the judges.

        The big contention with the law is the data retention without any probable cause.
        IIRC, when they drafted the law, they originally wanted to store everything up to 2 years. Before that the telecoms only stored info for a couple of weeks, as mentioned above.

        • Mary says:

          Thanks for the additional context. Two years was a start point pretty calculated to make it look “moderate” to reduce down to 6 mos.

  4. shoo says:

    EW, thank you for picking up the topic, and scribe for elabotating.
    The whole stupid and very expansive law was written (as eagerly as ‘schlampig’) following EU guidelines. But now even Brussels – at least the European Parliament – gets more concerned with civil rights like the citizens’ privacy. They just voted down the SWIFT aggreement with the US (on the transmission of all international money transaction data to the US), an aggreement that had been signed off by the EU administration only days earlier.

    Mary: The German telecom companies are presently busy deleting these infamous records by the terabytes. Their usual 6-week records are kept mainly for invoicing purposes, and can be accessed only after individual judicial review. Just the way it should be – and was before the wholesale snooping law.
    I aggree with your el-Masri point & do enjoy all your intelligent comments from my German hinterland.

  5. earlofhuntingdon says:

    The German decision has a better legal foundation than exists here. It has the benefit of the EU data protection regime, with its holes, it is still orders of magnitude better than the puny patchwork of rules extant here. The US government and American business has devoted enormous resources for well over a decade to avoid a replication here of such a consumer protective legal regime.

    It has the German constitution and judiciary. And it has a sordid history in the work of the Nazis and the former East German security services that its lawyers, judges, people and many politicians desperately want to avoid repeating.

    It’s sadly funny that part of that history the Germans want to avoid repeating is the hauling into court of their top judges and lawyers and trying them for war crimes for enabling politicians to have unfettered sway in abusing their people.

    • fatster says:

      I was going to ask, Don’t Let America Spy on Germans? Why not, Don’t Let America Spy on Americans? But, I guess you’ve just supplied the answers.

  6. MarkH says:

    If they don’t think the information is important to keep (and I read some mention of this a week ago) it’s as though they think the war on ‘terrrrr’ is over and we have caught or captured bin Laden & al Zawahiri.

    If we’ve got ’em we should show the public what their money has paid for.

    I suppose it would be best politically to time such an announcement to come a bit after HCR is done (so as to not confuse the public). But, someone in Europe might say something aloud, so it could be best to put it out here first…if there’s anything we have to brag about.

    Of course, there would naturally be concerns about terrorist attack reprisals, but I don’t see anything like that on the horizon. I wonder what our counter-terrorism specialists have to say on that. Is there any reason to fear announcing something big?

    • macaquerman says:

      going to be interesting to see how legal enforcement of the privacy of internet information can be effective without infringement of that privacy in enforcement.

      • fatster says:

        Oh, they’ll figure it out. (Not meaning to be flippant; just kinda grimly acknowledging what will probably happen.)

  7. macaquerman says:

    there’s nothing wrong with your tone, somewhere between grim and cynical seems about right.

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