Federal States

The Big Brother Award in the Politics Category goes to the governments (interior ministers) of the German federal states of Bavaria, Lower Saxony, Rhineland-Palatinate and Thuringia for their efforts, riding on the issue of fighting terrorism, to tighten their states' police laws, allowing for drastic restrictions of elementary basic rights and liberties affecting a large number of unsuspicious people. Especially threatened is the principle of privacy of correspondence and telecommunications, the basic right of informational self-determination and thus the freedom of communication without fear of repression.

The Big Brother Award in the Politics Category goes to the governments (interior ministers) of the German federal states of Bavaria, Lower Saxony, Rhineland-Palatinate and Thuringia, for their efforts, riding on the issue of fighting terrorism, to tighten their states' police laws, allowing for drastic restrictions of elementary basic rights and liberties affecting a large number of unsuspicious people. Especially threatened is the principle of privacy of correspondence and telecommunications, the basic right of informational self-determination and thus the protection of privacy. Here are some of the gravest restrictions:

1.
In all four states the preventive monitoring of telecommunications is to be legalised - that is eavesdropping on telephones, mobiles, reading faxes, text messages and emails, without the precondition of a criminal investigation or even an initial suspicion. The reasoning given is that suspicion of a crime being planned might of course be found during observation, and the crime could then be prevented. Just vague indications will suffice to snoop on potential suspects "to defend against a current danger to health, life or freedom of a person or substantial material assets", or to observe people "where actual evidence justifies the assumption that they will commit serious crimes in the future" (the wording varies in the drafts in the different states).

Such powers, which for now have only been made legal in Thuringia, enable police to observe telecommunications of "pre-suspect" people long before an initial suspicion is established - even completely innocent and incidental communication partners such as relatives, neighbours, colleagues and other acquaintances can be affected by eavesdropping. And in some cases even communication with unsuspicious and trusted contacts, such as lawyers, doctors, therapists, counsellors, or journalists, can be monitored - without regard of the specific obligation of silence that these professions must follow. The right of these professions to refuse testimony, secured by law, is circumvented, as well as vital aspects of the freedom of the press: the protection of journalistic sources. Independent journalistic research would no longer be guaranteed under these rules.

The rule that a judicial order would be required for these measures does not offer sufficient protection, as demonstrated by the surge in telephone observation orders. Until today the judiciary has no role in the process of investigation and thus there is no judicial control of the progress and eventual success or failure of these observations. In this area of spying, Germany is already among the world leaders with over 15,000 observed telephone numbers per year and millions of people affected - a depressing record that led the former Constitutional Court judge Jürgen Kühling to write off the principle of privacy of correspondence and telecommunications as a "total loss" (Grundrechte-Report 2003, p. 15). The right to free communication without fear of monitoring and repression is no longer safeguarded.

2.
The preventive monitoring of telecommunication includes the content as well as "external" aspects - "communication link" data is collected and stored. All institutions involved in providing telecommunications, in whatever (even auxiliary) way, will be obliged to enable police monitoring and recording. This requires laying the necessary technical foundations to capture vast amounts of link data, and indeed capturing it just in case it is going to be requested for later. Providers will have to give the police information at any time about previous, current and future occurrences of telecommunication: who has contacted whom, when and for how long, from where to where, by telephone or in writing, what SMS and internet connections have been used.

3.
Plans also exist to locate of mobile phones using so-called IMSI catchers. These shoebox-sized devices, for one thing, can find out the individual ID or device number of a mobile phone. With that information the police can then request link data for that mobile phone user from the respective telecom provider. But IMSI catchers can also electronically locate mobile phones, even phones switched into standby mode. This enables police to collect movement profiles of mobile phone users - to pursue not only criminals, but also those they find capable of committing crimes in the future, i.e. to pursue people that in principle are innocent and under no particular suspicion.

In July this year, the civic rights organisation "Humanistische Union" (Humanist Union) asked the Federal Constitutional Court ("Bundesverfassungsgericht", Germany's highest court, established to safeguard the constitution, can repeal laws) to review the use of IMSI catchers for criminal investigation, as legalised in the law governing criminal court proceedings in early 2003. They argue in their complaint that the use of IMSI catchers leads to people being monitored regardless of the presence or absence of suspicion and thus violates the principle of telecommunications privacy safeguarded in Article 10 of the German constitution, sacrificing it to indiscriminate ways of investigation.

4.
The state of Rhineland-Palatinate is planning to introduce electronic bugging and video cameras for preventive use in the so-called "major listening and observing attack", a measure already legalised in the states of Thuringia and Baden-Württemberg. To install the spying devices, police will be authorised to enter the investigated home in disguise. Thus the constitutional right of the inviolability of the home is unhinged, affecting owners, tenants, cohabitants and visitors.

The judicial order required for such measures is to be renewed every three months, without a limit to the length of the investigation. In the event of "immediate danger" a simple permission by the head of the police authority is to suffice - despite the severity of the intrusion. The professional secrets of people authorised to refuse testimony are anything but sufficiently protected.

Now that people aren't even safe from eavesdropping in their own homes, says former Constitutional Court judge Jürgen Kühling, a "loss of civilisation that will change the shape of our democracy" is looming (Grundrechte-Report 2003, p. 20).

5.
The state of Bavaria is planning to automatically record vehicle numbers and compare these with police records (investigative as well as other records). If a suspicion results, the affected vehicle will be followed. The Bavarian police are already testing such systems, without any legal basis. Whether this mass screening will record and use only vehicle numbers or extend further, e.g. to biometric data for face recognition, is unclear - as well as the question what the recorded data will be used for, for example to construct movement and travelling profiles.

The automatic recording of vehicle numbers is to be used at the Bavarian border as well as in so-called endangered places (such as airports, railway stations and military installations), but also to monitor streets, motorways, shopping centres or parking spaces. And these methods are intended for use in the run-up to demonstrations to filter out "known trouble-makers".

To conclude: such preventive measures in effect tend to break any barriers, can hardly be controlled and thus are inappropriate. This concept of prevention is leaning towards the insatiable, will make more and more unsuspicious persons "known to police" and make them a subject of investigation. The numerous people affected will normally not notice anything of the deep intrusion into their privacy.

Where prevention becomes the dominating police "logic", the relationship between citizen and state is quickly turned around: one of the most important aspects of the rule of law, the presumption of innocence, is covertly losing its power-limiting function. The human being is mutated into a potential threat - a generalised vote of non-confidence, as already expressed in "veiled" and "patterned" investigations or in the increasing video surveillance in public spaces, in which all passers-by are involved without knowing what the recordings will be used for in the future.

These new instruments pay homage to a preventive supervision state - a security state where trust and the rule of law are gradually getting lost, where uncertainty and fear are flourishing. In view of such a development, the former president of the Constitutional Court, Jutta Limbach is warning: "a democratic political culture vitally depends on an eagerness of expression, on the civic engagement of all citizens. These will gradually get lost if the state starts to biometrically measure and informationally muster its citizens and electronically pursue their movements of life."

The Christian-Democrat (CDU) governed state of Thuringia has already legalised this frontal attack on elementary liberties in June 2002. The government of Thuringia is therefore receiving this Big Brother Award for its past actions. This pilot project is now to be followed by the states of Bavaria (CSU), Lower Saxony (CDU/FDP) and Rhineland-Palatinate (SPD/FDP). These governments are receiving their award as a preventive measure.

Congratulations to the governments and interior ministers of Bavaria, Lower Saxony, Rhineland-Palatinate and Thuringia.