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Published online by Cambridge University Press: 06 March 2019
In its recent decision of April 12, 2005, Germany's Federal Constitutional Court (FCC) addressed concerns that advances in the technologies of surveillance will erode fundamental rights. Though it rejected the petitioner's call to limit use of the Global Positioning System (“GPS”) to track the movements of suspects, the Court did warn that surveillance technologies working in tandem posed privacy risks that were greater than the sum of each one working alone. The Court required investigators from different agencies and states to coordinate their activities and disclose all ongoing surveillance when seeking judicial approval of additional methods and technologies. It likewise cautioned the Bundestag (German Federal Parliament) to monitor advances in surveillance technology and to develop new statutory safeguards that would protect personal data by limiting the use of more powerful innovations. Yet the Court's opinion left many questions unanswered. It did not explain how legislators or investigative agencies could avoid unnecessarily and intrusively multiplying the use of surveillance, given the overlapping jurisdiction of intelligence agencies with state and federal police. And insofar as the German Strafprozessordnung (Criminal Procedure Code – StPO) regulates only those modes of surveillance that produce criminal prosecutions, statutory suppression remedies have no clear impact on the investigative use of surveillance for purely preventive or intelligence-gathering purposes. My essay will explore the implications and limitations of the Court's opinion with an eye on analogous American law (introduced to gain a comparative perspective.)
1 2 BvR 581/01; the decision is available in German at: www.bverfg.de/entscheidungen/rs20050412_2bvr058101.html. See also Jacoby 6 GLJ 1085 (2005).Google Scholar
2 Articles 1 and 2 of the Grundgesetz.Google Scholar
3 Article 2 (1) of the Grundgesetz (German Constitution); and English version is available at: www.bundestag.de/htdocs_e/info/gg.pdf.Google Scholar
4 BVerfGE 65, 1.Google Scholar
5 See St PO Sections 100a, 110a. For an English version see: www.iuscomp.org/gla/statutes/StPO.html.Google Scholar
6 United States v. Knotts, 460 U.S. 276, 284-85 (1983).Google Scholar
7 See e.g. United States v. Moran, 349 F.Supp.2d 425, 467-68 (N.D.N.Y. 2005)(upholding that the warrantless installation of a GPS device).Google Scholar
8 See e.g. People v. Lacey, 787 N.Y.S.2d 680 (N.Y.Co.Ct., 2004); People v. Gant, 2005 WL 1767655, June 27, 2005 (N.Y.Co.Ct. 2005); State v. Campbell, 759 P.2d 1040 (Oregon, 1988); State v. Jackson, 76 P.3d 217 (Washington, 2003); see also United States v. Berry, 300 F.Supp.2d 366, 368 (D.Md. 2004)(contrasting memory feature of GPS with more limited, real-time information revealed by electronic beeper, and calling for court order, in dicta.)Google Scholar
9 BVerfGE 65, 1.Google Scholar
10 Whitman, James Q., The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L. J. 1151 (2004).Google Scholar
11 Id.Google Scholar
12 Id.Google Scholar
13 St PO 163f.Google Scholar
14 Kyllo v. United States, 533 U.S. 27 (2001).Google Scholar
15 Of course, one might question whether the FCC could provide such guidance without violating the principle of separation of powers. Presumably, however, surveillance that does not produce prosecutions would result from powers which the police exercise in their preventive capacity or which the Verfassungsschutz acquire from their own statutory mandate; to the extent these powers infringe constitutional rights, some court, whether state or federal, should have the authority to pass on the lawfulness of what enabling legislation authorizes or on the legality of what the authorities interpret these laws to allow.Google Scholar
16 The failure to coordinate surveillance among different branches of government can produce dramatic results. In 2003, the FCC rejected the government's petition to ban an extremist political party after it turned out that the leadership had been thoroughly infiltrated by APC operatives from different state and federal agencies. BVerfGE 107, 339-395 (2003). Together, these informants had played important roles in setting the party's agenda and publicizing its goals—though it remained disputed whether they had done so after they had stopped working together with the APCs and whether they had influenced the party's defense strategy in the government's proceedings against it. Because the state and federal intelligence agencies had not known about each other's informants, their joint petition to ban the party had in fact relied at least in part on party propaganda that had been crafted by the APCs’ own former informants. The German Supreme Court ultimately dismissed the government's petition because the dangers that the political organization posed without the influence of APC infiltrators proved almost impossible to determine.Google Scholar
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