Germany: new law on surveillance
01 November 1991
The decision of the federal constitutional court of the FRG in 1983 that declared the census law unconstitutional ended a long judicial debate on the legality of intelligence gathering and data storage by police and government authorities. The court decided that the general freedoms of the individual included a right of "informational self determination". This meant that like any other form of intervention into the private sphere of the individual, data collection and storage required a legal basis. This decision, which in 1983 was celebrated by civil libertarians as a victory, has become the central motivation for legalizing the police and intelligence agencies practices of using information technology and covert action.
From 1984 on the FRG saw a general wave of laws and legal proposals in the security sector. These fell into four general categories: 1) the renovation of general "data protection laws"; 2) laws regarding the-intelligence agencies - the domestic 'verfassungsschutz' (constitutional guard); the military; and foreign intelligence. The latter categories were not regulated until a law was finally passed in 1990; 3) police laws, formally subject to legislation of the Lander(regional governments), but highly inspired by the conference of the interior ministers who prepared a standard draft for a unified police code; 4) the penal procedure code, containing police powers as part of the criminal justice system, subject to federal legislation.
As in the 70s when generalized powers to stop and search at police control points were enshrined in police laws and in the penal procedural code, the executive intended a harmonization of the legislation on police powers.
Regulations for data collection and processing and covert action are now virtually the same in police and penal procedure codes. These powers are as follows: general powers to collect and store personal data and to pass them on to other agencies; computer matching; notification in a police search system of purposes of covert registration (police surveillance); long time observation; use of informants; use of undercover agents; use of technical means for surveillance - from video cameras to bugging.
Traditionally police powers could be directed against suspects or persons causing a concrete danger to public security (disturbants), these new powers clearly refer to non-suspects and thus remove the traditional legal limitations on police powers. Beside the traditional judicial figures of concrete suspicion (in penal procedure) and concrete danger (in police laws) a new one was introduced: that of "preventive crime fighting".
In the past police intervention had to be legitimized and documented in relation to real incidents - crimes that had occurred or were imminent. The new idea is that the police must intervene and investigate before a crime occurs. The police philosophy of prevention has now been introduced into the legal context. Information and intelligence gathering that since the beginning of the 70s had become the backbone of police activity, now were becoming their legal basis.
Up until now five of the eleven Lander of the former FRG and all the five new Lander of the former GDR still have not renewed their police laws. Drafts for a renewed penal procedural code failed to pass parliament in 1988 and in 1989. In 1990, a third attempt was made by the Bundesrat - the chamber of the federal parliament representing the governments of the Lander. The conservative governments of Bavaria and Baden-Wurttemberg presented in March 1990 a proposal for a "law against drug trafficking and other forms of organized crime", which in its first version passed the Bundesrat in June 1990 with the votes of the majority of Social Democratic governed Lander. It could not be ratified by the Bundestag before the general elections in December 1990. The legislative process started again with virtually the same proposal in the new session beginning in 1991 and has