Laudator: Dr. Rolf Gössner

The BigBrotherAward in the “Government Authorities and Administration” category goes to

Germany’s Federal Prosecutor (Generalbundesanwältin)

Monika Harms

She receives the BigBrotherAward for her measures against opponents of the G8 summit in May this year. The BBA jury finds two aspects particularly dubious and thus prizeworthy:

  • First, Ms Harms has sought approval from judges at the Federal Court of Justice (Bundesgerichtshof, Germany’s appeals court in cases of civil and criminal law) to carry out systematic postal surveillance in Hamburg, in search of letters from militant G8 opponents claiming responsibility for an arson attack. As a consequence, all letters in the affected districts of Hamburg were inspected for suspicious external features.
  • Second, Ms Harms has given instructions for body scent samples to be collected and preserved from G8 opponents suspected of militancy. This has caused investigators to intrude severely into the private sphere and individual rights of the people affected.

The application for postal surveillance as well as the order to gather scent samples were connected to searches of 40 private homes, offices, culture centres and internet servers, under § 129a of the German Criminal Code (StGB), which penalises joining terrorist groups. This has placed leftist groups and globalisation critics under suspicion of terrorism before the G8 summit even began. These investigations have not led to any charges so far, but to widespread investigative snooping, data registration and processing – and the information gathered can be used to chart social relations between potential G8 protesters and opponents.

1. Postal surveillance – a preventive strike against the privacy of correspondence

In response to an arson attack in Hamburg on 22 May 2007, judges at the Federal Court of Justice granted permission, on the same day, to the Federal Prosecutor for wide-ranging postal surveillance. All items posted between 22 and 24 May via the Processing and Distribution Centre “20” of Deutsche Post in Hamburg were inspected, in search of letters addressed to certain newspaper editors. This was part of a criminal investigation on grounds of “suspected formation of a terrorist organisation” as defined in § 129a of the German Criminal Code, against three suspects alleged to be part of a “militant campaign against the world economic summit (G8) 2007 in Heiligendamm”. The search was for letters that by their external appearance would seem to contain claims of responsibility for the attack – lacking a sender address, using adhesive address labels, etc. For letters matching these “suspicious criteria”, further forensic examination – fingerprints or scent traces – would be used to find who had sent these letters and might therefore be responsible for the attack.

As it turns out, according to the Federal Prosecutor, only one letter was opened (in the presence of a prosecutor). But all mail posted in the districts served by the Distribution Centre – numbering in their thousands – were looked at and checked for the suspicious criteria. In the words of Hamburg’s Data Protection Commissioner, whole districts were placed under “general suspicion”.

The postal inspections were carried out by investigators from two Criminal Police Offices, those on the Hamburg state and on the federal level – although the required legal powers are given exclusively to postal workers. Neither prosecutors nor their police aides have this authority, because an intrusion by investigative authorities into postal buildings would compromise the privacy of correspondence further than the law would allow. This view is unanimously held among legal experts (German source: Meyer-Gossner, StPO, 2007, § 100 Rdnr. 8 m.w.N). Otherwise civil servants would gain insights into postal operations and knowledge of other mail not covered by the particular confiscation order. In this way, prosecution authorities gained information about certain aspects of postal communication – also about correspondence protected by professional obligations of confidentiality, such as that between lawyers and their clients, or journalists and their sources. That is a violation of professional confidentiality, as protected by article 12 I of the German Constitution, and of the basic right of privacy of correspondence, which protects not only the contents of postal communication but the process of communication as a whole – including the information whether any communication has occurred between particular partners at all (German source: Gusy, in: Mangoldt/Klein/Starck, GG I, 1999, Art. 10 Rdnr. 30; BVerfGE 85, 386 ff, 396).

Even if, with one exception, no actual registration of data actually took place, the memory of communication processes as observed by humans in those inspections can not be erased without trace. Because, in contrast to machine-based inspection, traces will remain in the investigators’ memories from the cognitive process of assessment. This destroys the certainty of postal correspondence being an unmonitored form of communication. This surveillance action has not only damaged the secrecy of correspondence, it most likely violated the constitutional principle of proportionality as well. Responsibility for this lies with the Federal Prosecutor, who applied to the Federal Court of Justice to obtain legal permission for the operation.

2. Olfactory samples: scent of terror

In the course of the investigations, body scent samples were taken and preserved during raids on 9 May 2007 from at least five suspected G8 summit opponents, on the Federal Prosecutor’s initiative. This intimate kind of data is used for identification by specially trained police tracker dogs, whose task it is to find out whether a suspect person was present at a certain location, or whether he or she has been in physical contact with a crime tool or a letter claiming responsibility. The investigations focused on various paint and arson attacks, the crime therefore being damage to property. The Federal Prosecutor sees this seemingly archaic sniffing method as “perfectly normal” even in today’s digital and networked world of crime investigation – while admitting that it is very rarely used these days.

Even though the five scent samples were taken in a criminal investigation as part of identification procedures, they could also be used in threat prevention, given the right circumstances. They could also be made available to secret services – the recent developments in our so-called “security policy” have made the divisions between prevention and repression increasingly permeable. Germany’s Minister of the Interior has confirmed the preventive character of this measure when he connected it directly with the protection of the impending G8 summit.

In terms of forensic technology, the method of body scent sampling is quite doubtful: even according to the Federal Prosecutor, it could only serve as indicative evidence within a wider assessment of facts, but in no case could it reach the level of proof in the “classical” sense. Scent samples therefore are not a progress in forensic technology; they are an odorous and inappropriate method tainted by high error rates, one that was in use even in the German Empire (then termed “conserved villain scent”). After the Nazi era, the method was no longer practised in West Germany, out of fundamental as well as legal reservations. In contrast, there was a surge of scent sampling in East Germany – which is why it reeks of perfidious Stasi tactics (Stasi: “State Security”, East Germany’s secret police) and reminds then-dissidents of a past thought to have been overcome. The preserving jars with scent samples secretly taken from dissidents can today be seen in the Stasi museum and in the “House of History” (Haus der Geschichte) in Bonn as daunting reminders of an overbearing state.

Today’s sniffing, however, is more advanced: The supposedly unmistakable body scents, or olfactory samples, are collected as so-called “aroma exhibits” and processed by standardised scientific methods. While in the times of the German Democratic Republic (GDR), samples were caught, often secretly, in unsophisticated yellow cotton cloths and kept in thousands of preserving jars diverted from their original use by the Stasi ministry, these days suspects are made to hold a sterile tube made of special steel, which is then kept in a gas-tight glass container. Finally, three specially trained police dogs with “marked predatory drive”, officially called “scent trace matching dogs”, get to sniff the small tube to let them compare it with a scent found at the scene of a crime. According to the Federal Prosecutor, no match was found in the cases mentioned above.

Although Federal Justice Minister Brigitte Zypries assures us that recorded scents are generally destroyed after use (which, we are told, has happened in these cases) and archives for olfactory fact-searching will not be created, we know what these assurances are worth – just remember how genetic or toll data have been used ever more widely. US scientists are already tracing the “scent of terror” in new ways – intensive work is underway on digital scent analysis, and this will surely be discussed in this country as well. Because the Federal Prosecutor intends to continue using scent samples in appropriate cases – even though the method severely intrudes into personal rights and the private sphere, and many constitutional law experts and politicians of almost all denominations express doubt that it is compatible with the principle of human dignity.

We reinforce this warning with the BigBrotherAward and leave the final word to the Social Democratic Party’s security expert, Dieter Wiefelspütz, who said about the Federal Prosecutor: “She’s gone to the dogs and should turn back as soon as possible.”

On this note, our congratulations, Ms Federal Prosecutor, Monika Harms.