A Pantomime of Privacy: Terror and Investigative Powers in German Constitutional Law

Abstract

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German constitution (Basic Law) provides explicit textual protections that America’s 18th Century constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Article 1 of the Basic Law) and the free development of one’s personality (Article 2 of the Basic Law). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a “core area of privacy,” a “right to informational self-determination,” and a right to the “security and integrity of information-technology systems.” On closer examination, however, Germany’s burnished privacy reputation may not be so well-deserved. The Constitutional Court’s assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely-tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this article I argue that this adds up to a mere pantomime of privacy – a privacy of precise data retention and deletion timelines, for example – but not the robust “right to be let alone” that contemporary privacy advocates demand.

Keywords: Germany, Privacy, BKA, Investigative Powers, Core-Area of Privacy, Proportionality, Terrorism, Data Protection, Data Transfers, Intelligence Oversight