Germany: new law on surveillance and organised crime
01 January 1991
Germany: new law on surveillance and organised crime
artdoc December=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 gene