Laudator: Alvar C. H. Freude

The “Politics I” BigBrotherAward goes to the

members of the

4th Parliament of Mecklenburg-Vorpommern

represented by the Parliament's President, Ms Sylvia Bretschneider

for legislation that allows eavesdropping and sound recording in public places, public buildings and public transport. The Big Brother Award is due to the whole State Parliament (Landtag) of Mecklenburg-Vorpommern. Members of all parties making up the House — SPD (social democrats), PDS (leftist) and CDU (conservative) — have approved of this excessive surveillance.

The citizens of the former GDR had hoped that by the overthrow of the old system in 1989 and the German unification in 1990, they had finally overcome ubiquitous surveillance by the infamous “State Security” (Staatssicherheit or Stasi). Also, the German Bundestag had advertised freedom rights in the Federal Republic with the slogan: “Flirting, Slandering, Gossiping. And nobody will listen in.”

16 years after the unification, Mecklenburg-Vorpommern has a revised police law called “Law of Public Security and Order in Mecklenburg-Vorpommern” or, for short, “Security and Order Law” (Sicherheits- und Ordnungsgesetz, SOG M-V). Since July 2006, this law in its article 32, paragraph 3, gives public order authorities and the police permission to monitor public spaces in the vicinity of so-called “endangered objects” not only with video cameras but also by recording sound that will be stored for one week:

Image and sound recordings may be openly made [... in a transport or supply facility of an institution, a public transport vehicle, in official buildings or in an endangered object specified by the police authority or in its direct vicinity ...] insofar as there are facts justifying the assumption that near or in objects of this kind criminal acts are to be committed through which persons, these objects or other items kept therein will be put to danger. Such measures [...] may even be carried out if third parties will inevitably be affected.

Article 32, Paragraph 3 (in part)
Sicherheits- und Ordnungsgesetz Mecklenburg-Vorpommern

To be fair: Such surveillance measures in public space need to be mandated by the proper authorities. But the hurdles for such a mandate are about as low as they were in GDR times: repeated cases of pick-pocketing or graffiti in trams justify the assumption that this can also occur in the future and that therefore surveillance should be necessary.

Through this, the public order authorities are allowed to carry out sound recording alongside video surveillance for example at park benches, in the corridors of public buildings, in public streets and places in the vicinity of “endangered objects”, as well as in buses, trains and trams.

These sound recordings are expressly not restricted to originators of dangers but are allowed to extend to all citizens. That is, even to completely unsuspicious and uninvolved people who happen to be in these particular places. Of special interest is the legal reasoning that justifies the recording of sound: There is none.

Users of public transport, people going for a stroll near a ministry, pensioners sitting on a park bench, or couples necking there, have to bargain for somebody they themselves cannot see listening in to them flirting, slandering, gossiping.

Given the power of modern microphones, even the cheapest ones, no word in a bus, on a park bench or in public buildings’ corridors will remain unheard. There may be no official legal reasoning to justify sound recordings, but perhaps the parliamentarians thought that terrorists would chat about their plots on a stroll round Lake Schwerin (Schweriner See). After all, in early summer of 2007 the G8 Summit will be held there.

Already in 1983 the Federal Constitutional Court (Bundesverfassungsgericht, the highest German court), had ruled in its census verdict that restrictions to personal freedom of the citizens must not go further “than what is indispensable for the protection of public interests.”

One may strongly doubt that recording images and sound irrespective of suspicion in public places, public buildings, or in public transport is indispensably necessary for the protection of public interests. We even doubt that it serves the protection of public interests at all. We have yet to wait for the first camera that will throw itself between an assailant and his victim. And no microphone in the world “protects” against crimes — they will just be plotted somewhere else.

The Federal Constitutional Court demands that legislators must not excessively interfere with the rights of citizens. Authorities must always choose the measures that constitute the smallest possible interference. The sole aim of security is the protection of freedom.

It follows from the ruling of the Federal Constitutional Court about the so-called Major Eavesdropping Attack (Großer Lauschangriff, the German name for audio surveillance being used on private homes in the course of state investigations) that private communication belongs to the sacrosanct core area of private life. Such disproportionate surveillance is therefore impermissible.

With this background alone, the bill is clearly unconstitutional. The change of the law in Mecklenburg-Vorpommern would be equivalent, as it were, to a voluntary declaration by the citizens to waive a constitutional right. Whoever stays in a place under surveillance would thereby consent to being under surveillance. There are information signs, after all. But: a voluntary waiving of a constitutional right? Constitutional rights cannot be waived. Not even with the argument: “I have nothing to hide.”

In its ruling on the census in 1983 the Federal Constitutional Court made it clear that already an awareness of being under surveillance can lead to changes in behaviour. Especially the “psychological pressure of public participation” could inhibit the freedom of the personality and the autonomy of decisions. Even granting that being watched by others and picking up parts of conversations is a normal element of living together in a society, control over the individual must not exceed the degree necessary for a member of society and must not deprive him of essential parts of his freedom to act.

But this is exactly what happens in recording images and sound in the public area, without any suspicion, where also people who are explicitly unsuspicious are under surveillance. Nobody knows: Am I being watched, am I being listened to? Is somebody eavesdropping on me? Can I slander, gossip or even flirt without any danger? When in doubt, one will be prone to behave inconspicuously and streamlined — and have a persistent feeling of being under observation. For one or the other politician in the Mecklenburg-Vorpommern parliament this may be a tantalising prospect, but our constitution has other priorities:

Everybody has the right to free development of his personality insofar as he does not hurt the rights of others and does not violate the constitutional order or the moral law.

Article 2, Paragraph 1 of the German Constitution

Flirting, slandering, gossiping. And the police are listening in. Mecklenburg-Vorpommern is following an old tradition here. Especially the state parliament of one of the formerly “new states” in the Federal Republic of Germany might, 17 years after the dissolution of the GDR, have shown a different kind of historic sensitivity. It remains to be hoped that the authorities will make use of their new capacities in as few places as possible. And that the Federal Constitutional Court will topple the objectionable points of the “Law of Public Security and Order in Mecklenburg-Vorpommern”

Our heartfelt congratulations to you, Ms President Bretschneider, our heartfelt congratulations to the members of the 4th Parliament of the state of Mecklenburg-Vorpommern.

 

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