German Court Ruling Strikes Another Blow Against War on Terror
In March 2008, just three months after the German implementing law came into force, the German Constitutional Court issued an injunction limiting the conditions under which saved data could be furnished to government agencies. In October 2008, it made the conditions even more restrictive. The German court’s latest ruling specifically requires all such data as has been requested by government agencies, but not yet delivered, to be “deleted at once” — a measure that looks suspiciously like court-ordered destruction of evidence.
The ruling allows telecommunications firms to continue to save such data as they require for administrative purposes such as billing. But it appears that even this data is to be quickly destroyed. Thus, Markus Michels of the IT firm Cedros told the Frankfurter Allgemeine Zeitung (March 4 edition):
As long as this data is saved, there will still be information requests from government authorities. But in the future they will have to be made faster, since the data will be deleted after just a few weeks.
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Michels also explained that since the EU directive is still in force, German IT and telecommunications firms are segregating the data of German clients from the data of foreign clients and then deleting just the data of the German clients — a practice that raises obvious questions about equality before the law in Europe.
Incidentally, this is not the first time that the German Constitutional Court has defied the EU on counter-terrorism matters. In November 2004, the court issued a last-minute injunction stopping the extradition to Spain of reputed al-Qaeda financier Mamoun Darkazanli under the so-called European arrest warrant. The court would later overturn the German law implementing the European arrest warrant. In the meanwhile, the law has been rewritten, but German authorities continue to refuse to extradite Darkazanli. (On the Darkazanli case, see Stefan Frank’s report on Pajamas Media here.)
In 2006, Germany simply “opted out” of the application of the complementary “European evidence warrant” with regards to six categories of crimes. One of the categories was terrorism. (See my contemporaneous report “Asymmetrical Europe” on Transatlantic Intelligencer.)
Although the mere retention of communications data is obviously not tantamount to surveillance, the German court claimed that the practice creates “a diffuse threatening feeling of being observed” and that this “feeling” was somehow incompatible with the basic rights guaranteed under the German constitution. The argument appears particularly ironic — not to say downright flimsy — in light of the remarkably regular practice that German law enforcement makes of monitoring communications via wiretaps and other forms of electronic surveillance. To an extent that would be inconceivable in the United States, German residents are in fact being observed. They are being so, moreover, with the express blessing of the German courts, which appear to require nothing even remotely approaching the probable cause standards that obtain in American courts.
As reported by the Berliner Morgenpost, in 2007 nearly one million phone calls were monitored by police in Berlin alone. Some 1100 Berlin residents were the targets of wiretaps. The number of wiretaps authorized in the same year for the entire United States was just over 2200. (See the U.S. federal government’s 2007 Wiretap Report.) A 2003 study conducted by Germany’s Max Plank Institute for Foreign and International Criminal Law found that wiretaps are used by law enforcement authorities some thirty times more frequently in Germany than in the USA. The same report found that only 0.33% of the German wiretaps were associated with subsequent prosecutions and convictions: one-fifth of the corresponding figure for American wiretaps.
In 2005, the total number of phone numbers, e-mail accounts and internet connections placed under surveillance in Germany reached a new high of nearly 50,000 (49,243) according to the official statistics. The new record numbers prompted Bundestag member Jerzy Montag of the German Green Party to pronounce Germany the wiretap “world champion” (source: Heise.de).
Numerous Islamic extremists in Germany are known, for example, to have been kept under electronic surveillance by German police without, however, charges ever being brought against them by German prosecutors. Their number includes Mohammed Haydar Zammar, the reputed recruiter of the members of the Hamburg cell, and Christian Ganczarski, a German convert to Islam who is presently serving an 18 year prison sentence in France for his role in the 2002 Djerba synagogue bombing.
I, for one, am greatly relieved by this and the EU parliament’s decision. ”Those who sacrifice a bit of liberty for a bit of security…”
“…overturning a law that required telecommunications firms and internet providers to retain basic communications data for a period of six months”
If you believe in he Constitution of the United States, you should applaud this.
#2 Robert V – I agree, and I’m a Conservative (with libertarian leanings).
If they want this data, they need to get warrants ahead of time, just like the need to get wiretaps ahead of time. Passing a law that would allow them to target terrorists and their organizations would be a good step. Then the courts could give warrants ahead of time for specific phones, websites, etc….
Of course, they may have done just that. I don’t know enough of what’s been done or not. So, this ruling may be bad.
I fail to see what liberty right has been sacrificed when there is no right to privacy on the Internet? If you think your Emails have a right to privacy you are sorely mistaken. And that probably explains the EU decision: what politician would want a 6 month record of their Emails subject to ad hoc disclosure, either by hacking or a “deep throat? “
We´re not talking about wiretapping. We´re talking about telecommunication data, i.E. numbers, which number called which number, which ip adress went where and such. The spoken word on the phone is of course not stored. Mostly this is data the telecommunications firm has to store anyway because they need it to bill their clients. The law just says this data has to be stored for six months.
Why is this data important to prosecutors? To follow crime and terror networks. You find out a phone number a criminal or a terror suspect uses, you´d like to know whom he did call and how long, to get clues that might lead prosecutors to other criminals and terrorists. Especially in fighting terror knowing the networks is very important.
From my point of view the consitutional court of Germany has become somewhat erratic, allowing the anti-democratic lisbon treaty but then striking down rather minor infractions on personality rights such as this.
The newly appointed judge replacing the retiring president is also quite a liberal, stating in a recent interview that he regards Guantanamo prison as a clear violation of international law, no question about it.
Thank you, Zaza (again). I’m afraid some of the previous commentators did not actually read the article. To repeat: the EU directive expressly lays out that the content of communications is not to be saved. We are simply talking about framework data that telephone service providers or internet access providers — also in the US — are generating anyway. Moreover, the government does not by virtue of the law “have” the data. The law requires the IT or telecommunications firms to save it.
The problem here is that the court has struck down the data retention law as somehow an unacceptable violation of privacy rights — *as if* the retention of the data constituted surveillance — but it has done nothing to set limits to the remarkably large practice of *real literal electronic surveillance* that occurs in Germany. This includes wiretaps, surveillance of e-mail accounts and even surveillance of internet connections — all the sorts of things that the public may well imagine that this law is about, but in fact it is not. To give yet another example: in Germany, a district attorney may initiate a wiretap *without* a court order. The DA can get the court order three days later. Moreover, according to the 2003 Max Planck Institute study cited in the article, when DAs do apply to the courts for wiretap orders, the applications are refused only 0.4% of the time.
Especially in fighting terror knowing the networks is very important.
It won’t be long before the germans find themselves another “Furher”…get uniforms and a snazzy marching band….and all will be well again.