By EDRi

On 22 May the German Constitutional Court has declared illegal under the
German Constitution the practice of screening data across several private
and public databases in order to find potential terrorists (“sleepers”).
Several federal states will now have to change their police laws. The
decision does not make data screening (“Rasterfahndung”, literally: “grid
investigation”, usual transliterations: “dragnet investigation” or “data
trawl”) completely illegal, but binds it to very narrow conditions. The
measure is still legal for investigations in specific criminal cases, as
it was used against the left-wing guerrilla RAF in the 1970s, when the
“Rasterfahndung” was invented. But for crime prevention purposes, it can
only be done in the presence a concrete danger for the lives or liberties
of persons or for the existence of the Federal Republic of Germany or a
federal state (Land). This requires factual indicators for an imminent
attack. A general threat condition or foreign tensions like after 9/11
2001 are not sufficient.

The Federal Police Agency (Bundeskriminalamt) had coordinated such
screenings, in cooperation with the state-level police authorities after
the terrorist attacks of 11 September 2001. Universities, private
companies, private security firms, public transport institutions, facility
providers, municipal authorities, and the Federal Register of Foreign
Residents were required to submit comprehensive information they had on
anybody matching a set of criteria (male, aged between 18 and 40, student
or former student, country of origin mainly Muslim) to the state police
agencies. The latter did a screening run for matches across the different
submitted databases that combined included more than 8 million people. The
31 988 hits were stored in a central file called “sleepers” and again
screened by the Federal Police Agency against a database that included up
to 300 000 persons who held a pilot license, were supposed to be
dangerous, or matched some other criteria. The remaining several thousand
persons (matches) was manually reviewed by the state police agencies. The
whole exercise did not lead to a single terrorist suspect or prosecution.

The plaintiff, a Morrocan citizen who studied in Germany in 2001, argued
that his right for informational self-determination was breached, that the
screening was an especially severe breach of fundamental rights because it
took place unbeknownst to the people affected, that it was not
proportionate because of the lack of factual indicators for an imminent
terrorist attack in Germany, and that the criteria were discriminating him
and fellow Muslims on the basis of religion. The lower courts had
overturned his arguments.

The official data protection commissioners, the opposition parties Greens,
Liberals and Socialists, and civil liberties groups applauded the court
decision and demanded an immediate stop of plans for similar measures like
communications traffic data retention, license-plate screening, or the
creation of new investigative powers for the Federal Police Agency for the
prevention of crimes. A spokesperson of the federal Ministry of the
Interior said that in international terrorism, there was only a thin line
between a general and a concrete threat condition, making it difficult to
apply the decision. The Bavarian Minister of the Interior, G√ľnther
Beckstein, called the decision “a black day for the effective fight
against terrorism in Germany.” The association of student representatives,
which had supported the plaintiff, demanded a “personal apology” from the
responsible authorities for the illegal and unconstitutional
discrimination of foreign and Muslim students in Germany.

Up to eleven federal states will now have to change their police laws and
criminal procedures acts. The decision will also have an impact on the
discussion about the legality of mandatory communications data retention
in Germany. The Constitutional Court explicitly re-emphasised in the
reasons given for the judgement the “strict prohibition, beyond
statistical purposes, of the storage of personally identifiable data on
stock.” (“auf Vorrat”). “Vorratsdatenspeicherung” – literally: “data
storage on stock” – is the German term for data retention.

Decision of the German Constitutional Court, 1 BvR 518/02 (in German only,
22.05.2006)
http://www.bundesverfassungsgericht.de/entscheidungen/rs20060404_1bvr051802.html

Press Release of the German Constitutional Court (in German only,
23.05.2006)
http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg06-040.html

Overview of reactions to the decision (in German only)
http://www.netzpolitik.org/2006/reaktionen-auf-das-urteil-zur-rasterfahndung/

Berlin Data Protection and Freedom of Information Commissioner: Special
Report on the Execution of Data Screening in Berlin (in German only,
1.12.2002)
http://www.datenschutz-berlin.de/infomat/sonderbericht/rasterfahndung.pdf

(Contribution by Ralf Bendrath, EDRi member Netzwerk Neue Medien – Germany)