Laudator: Dr. Fredrik Roggan, HU

The BigBrotherAward in the category "Politics" goes to

the Minister of the Interior of the federal state of Hesse

Mr Volker Bouffier

You are being honoured for the new Hessian police laws for which you are responsible, and with which the secrecy of telecommunication is further curtailed, informational self-determination is further undermined, and the public space is further degraded to a zone of complete surveillance.

The sheer number of new or revised directives makes it impossible for me to come up with a complete list of your freedom-hostile atrocities to hold it against you. So I have to limit myself to those enabling acts where the breach of constitutional principles is the most obvious.

Let's first have a look at the new rules for the surveillance of telecommunication (German: Telekommunikationsüberwachung, TKÜ). In Hesse you have now allowed police to tap telephones and use so-called IMSI catchers. IMSI catchers are devices with which the position of mobile phones can be quickly detected, even if they are not used. So-called preventive surveillance and the use of IMSI catchers are allowed for the prevention of acute harm to body, life or freedom of a citizen. Our criticism: Counter to express guidelines from the Federal Constitutional Court (Bundesverfassungsgericht, Germany's highest court), your law does not provide any regulations that protect the core areas of private life. Among such core areas are e.g. conversations between spouses, with close relatives or other persons of high trust.

Now you, Mr Bouffier, will object that for instance a bank robber will presumably not discuss details of married life with his wife over the phone while holding hostages in a bank. What you are overlooking here is that the expression "acute harm for body and life" has suffered severe damage after 11 September 2001. Many courts have been of the opinion that merely the abstract possibility that at some time somebody might want to commit an attack was sufficient to assume an acute danger in the present. "Present dangers to life and body" seem to be lurking just everywhere and at any time in our times of global terrorism. But who is to exclude, in this permanent state of emergency, that through your new authorisation communications that do belong to the inviolable core of the secrecy of telecommunication could be overheard? It is only a few months ago that the Federal Constitutional Court had to explain to the legislative body of the state of Lower Saxony (Niedersachsen) that the core area of private life is sacrosanct even in the surveillance of telecommunication. Your regulations disregard this ruling.

You are also responsible for a regulation according to which even persons under the age of 14, i.e. children, may be subjected to DNA analysis. The prerequisite is that these children have committed a severe crime and that such behaviour is to be expected from them in the future. Body cells may be extracted from them, the obtained material may be examined and the DNA signature stored for further use. What you are overlooking here, Mr Bouffier, is that children's misdemeanours do not normally impair the sense of security in the public. But a severe feeling of impairment of this sense of security is part of the constitutional definition of a severe crime. So there is a question of principle whether the youngest in the community are even able to commit a "severe" crime in the sense of the law. Beyond such doubts, you are disregarding the principle that early stigmatising of young people - e.g. through storing their data in a "rogues' gallery" - should be avoided. And finally you ought to have occupied yourself a little more with the objection that you are not even legally in a position to enact a law that provides for DNA analysis as a measure for the prosecution of possible future crime. This objection was expressly raised in an expert hearing in the state parliament of Hesse. This advice was obviously of little use, since the unchanged act was still laid before the parliament. And that is why in the near future the courts may well have to explain more fully to you the division of legislative competencies between the national and the federal state level.

Let's turn to the area of public traffic, which you, Mr Bouffier, obviously misunderstand primarily as an area of surveillance. As one of the first German federal states, Hesse has enacted an authorisation for the scanning of number plates. Through your authorisation, the police are enabled to compare number plates of cars with investigation databases while observing public traffic. A reference to an individual can thus be made whenever the car is being driven by its owner. The police can therefore know who was where at a certain moment. But this makes that measure different from "simple" video surveillance of public spaces by the police, where they don't normally know whose every step they are monitoring with their camera eyes. The fact that plate scanning produces personal references makes this measure seem exceptionally intrusive.

Also with respect to video surveillance you seem to think that you have to set new standards. The Hessian law about public security and order now contains an authorisation for the police to shoot video footage while taking personal details, for instance during large public events. Not only are you thus subjecting yet another area of public life - which indeed occasionally includes the taking of citizens' personal details - to total surveillance. No, you are also trying to differentiate in this authorisation between the inspected persons and inevitably affected third parties. Storage of data is only allowed with respect to the individuals inspected, with other passers-by there may only be collection of data, which is preliminary to data storage. But how, Mr Bouffier, are you going to prevent storage of data of a passer-by when the video image of this person is recorded? The jury really regards what is now contained in the law as legal nonsense, as has already been pointed out to you by experts' advice before the law was passed.

You, Mr Bouffier, are a repeat offender in terms of the Big Brother Awards. Already in 2002, you were honoured for a revision of the Hesse police law with which the requirements for "police investigation by data mining"1 had been lowered considerably and which also ignored a ruling of the Frankfurt Court of Appeal (Oberlandesgericht Frankfurt). We saw this as your first considerable breach of civil liberties that severely damaged the assuring impression that we were living in a free country. Now the new Hesse police law is further proof of your low regard for data protection issues. Informational self-determination, Mr Bouffier, is a basic right. Quite erroneously, you still seem to believe that one can cut back on basic rights almost at will, without touching their very core at some point. This renewed offence against a free society leads to your infinite storage in our database of data leeches.

Congratulations, Mr Bouffier.

1: "Rasterfahndung", where profiling and data mining are used as a "dragnet" to find potential suspects - the tactic or at least the name is a German invention of the 1970s.

 

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