IEEE Technology and Society Magazine - Summer 2014 - 34

leading edge

SaSKia HUFnagel

Observing Crowd-Sourced
Surveillance through the Eyes
of the German Basic Law

T

his piece briefly outlines the legal implications of surveillance, sousveillance, and
"whistle-blowing" in a German human
rights context. For the purposes of this
article, surveillance is defined as the observation of
citizens by the state, sousveillance as the observation
of the state by citizens, and "whistle-blowing" as the
observation of citizens by citizens.
The German perspective has been chosen as it has
a reputation for being rather strict when it comes to
privacy law as is evidenced, for example, by German
resistance to the European Data retention Directive in
2006.1 However, it is argued here that the laws applying
in Germany with a view to data protection are sometimes
more advanced than their application. A reason for this
is the German (civil law/inquisitorial) legal system in
which most evidence is treated as being admissible - this
applies especially to the lower courts - although it has, in
fact, been illegally obtained.
Germany's attitude towards surveillance generally is extremely restrictive due to the horrifying
1

Directive 2006/24/EC of the European Parliament and of the Council of
Mar. 15, 2006, on the retention of data generated or processed in connection
with the provision of publicly available electronic communications services
or of public communications networks and amending Directive 2002/58/EC.

experiences of World War II and the later established
Eastern German surveillance state (1961-1989). The
1949 German Basic Law, which was drafted after the
end of WWII, therefore established strict protections
of privacy in Articles 1 (Human Dignity), 2 (Personal
Freedom), 10 (Data Protection - Communications)
and 13 (Inviolability of the Home). After reunification with the former German Democratic republic
in 1989, the protection of privacy by the courts could
be seen to have increased even further (see case law
below). The files that the Stasi (East German Secret
Police) compiled on people during the time of its existence were after the end of the cold war secured in a
state agency called "Gauck Behörde" (after the now
German Federal President Joachim Gauck).
Ironically, it came to light in 2000 that the agency
had made personal information available to researchers and journalists. After the then German Chancellor
Helmut Kohl sued the agency for disseminating his
personal information, this practice stopped.2
German case law, and in particular decisions of the
German Constitutional Court (Bundesverfassungsgericht), show a very strict approach to data protection, in
particular with a view to data gathered by the state. An
important decision was reached in 20083 determining
2

Digital Object Identifier 10.1109/MTS.2014.2319934
Date of publication: 4 June 2014

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Verwaltungsgericht Berlin - 1. Kammer, Az.: 1 A 389/00, urteil vom
04.07.2001.
3
BVerfG vom 27.02.2008, 1 Bvr 370/70.
IEEE TECHNOLOGY AND SOCIETY MAGAZINE

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SuMMEr 2014
Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - Summer 2014
