The BigBrotherAward in the category "Politics" goes to the Saatgut-Treuhand Verwaltungs GmbH Bonn represented by CEO Dirk Otten.

Farmers receive letters from lawyers, fields are examined, customer data retrieved from farming cooperatives. More than 2,500 farmers refuse to reveal information and have already been sued. And undercover test buyers of Saatgut Treuhand make their rounds, buying potatoes from farms as evidence.

What's going on? Which criminal offence are farmers charged with? Spraying dangerous poison mixtures? Polluting groundwater with liquid manure? Secretly growing genetically modified plants?

No, even worse: these farmers are suspected of keeping crops they have grown to use them as seeds in the following year - sowing their own harvest.

It makes one wonder: farmers have been doing this for thousands of years - sowing part of their own harvest. Where is the problem? Well, since the 1990s there is an international agreement (a revision of the so-called UPOV convention¹) that found its way into EU and German law. A license fee must be paid for seeds registered by a breeder, and not only once when the seed is purchased but (after a change in the German Variety Protection Law in 1997) every following year as well, even if the seed is taken from one's own harvest. These are the so-called "re-seeding fees" (Nachbaugebühren). And to collect these fees from farmers, Saatgut-Treuhand ("seed trust") turned to action.

A seed registered with the German Federal Plant Varieties Office (Bundessortenamt) is given protection ("Plant Breeder's Rights") lasting 25 years for cereals and 30 years for potatoes. Plant breeders can collect license fees during this time whenever this kind of seed is sold.

Intermission: Linda - a potato variety becomes "illegal"

The full absurdity of this license and re-seeding fee business is made obvious by the story of "Linda". "Linda" is a potato variety and was about to reach its 30th birthday - thus becoming license free. The breeder company Böhm/Europlant didn't take this as a reason to celebrate, though - instead, it terminated Linda's listing on the National List of Plant Varieties (Bundessortenliste) by 31 Dec 2004. This made planting and growing "Linda" illegal. The logic behind this is clear: farmers had to obey and grow other varieties that still generate license fees.

But the company underestimated Linda's popularity, especially in the north of Germany. Consumers started massive protests, rebellious farmers continued to plant and grow "Linda", the Federal Plant Varieties Office extended the termination period of Linda's listing until 2007, and one active farmer is trying to re-register the variety on the National List.

More general resistance is building up among farmers, too, against the re-seeding fees for instance. About 16,000 farmers are refusing to pass information on to Saatgut-Treuhand. It is not their intention to deprive breeders of their well-earned money. The Nachbau syndicate, which was founded by farmers organised in the "Consortium for Farm Agriculture" (Arbeitsgemeinschaft bäuerliche Landwirtschaft, AbL), has developed an alternative concept for a "seeds fund". Farmers, organisations, breeders and the state would pay into this fund, which in turn would pay plant breeders for their efforts. Members' participation would help to preserve the diversity of crop species and prevent yield increase from becoming the only goal of breeding activities.

What are Saatgut-Treuhand doing?

Saatgut-Treuhand are writing letters to farmers in which they ask for detailed information on what is grown where. More than 2,500 farmers who would not disclose this information have already been taken to court, through all levels.

But farmers are resisting - with success: the European Court of Justice decided in spring 2003 that there is no general obligation for farmers to give information to Saatgut-Treuhand. In autumn 2004, the court ruled that seed processing companies are under no general obligation of disclosure either. The court ruling also said that breeders needed to have evidence that a farmer possessed seeds they had listed (and might therefore engage in re-seeding) to be able to demand disclosure. The purchase of a license-protected seed variety could be regarded as evidence, according to the court.

But Saatgut-Treuhand are still demanding disclosure (although they now accept informal notices) and hiring lawyers to pester farmers with threatening letters. In addition, they are sending undercover test buyers to farms, who buy potatoes, request a receipt and slip in the question whether these potatoes can also be used for planting. Anybody who doesn't clearly deny this in the presence of witnesses is taken to court by Saatgut-Treuhand.

Why do we think this is worth a Big Brother Award?

Two reasons: First - it remains a mystery how Saatgut-Treuhand obtained the farmers' addresses. They claim to have searched phone book CDs for job specifications or the word "farm". But farmers who have no such details in their phone book entries have also received letters from Saatgut-Treuhand. In the yearbook "critical farming report" (Kritischer Agrarbericht) the suspicion was raised that the German Farmers Association (Deutscher Bauernverband) had provided Saatgut-Treuhand with its register of members. It is known that Raiffeisen cooperatives like the South German BayWa have not only handed over addresses but even full purchase details of their customers to Saatgut-Treuhand.

The second reason: a new central database with details on who planted what and how much on which land etc. is being created here. Saatgut-Treuhand are not doing this as a neutral clearing house, they are acting on behalf of the seeds industry - it is no coincidence that they are located in the same building as the Federal Association of German Plant Breeders (Bundesverband deutscher Pflanzenzüchter, BDP) and the European Seed Association (ESA) in Bonn.

This information on land use thus finds its way to the big seed companies, who have great commercial interest in a "transparent farmer". Whoever knows farmers' cropping plans can use this information to control what is planted - and eaten - with targeted price raises here and discounts there. The re-seeding fee is an important mosaic piece in this hunt for information. Knowledge is power.

The seeds industry is concentrating, with chemistry corporations buying into it - the global players Novartis, Bayer and Monsanto want to sell seeds, pesticides and fertilizers in "combo packs". It is their stated goal to control the complete "food chain", from seeds via harvest and processing to standardised foods straight to the consumers' plate.

Germany was chosen for its obedient mentality to test the enforceability of re-seeding fees in Europe - other countries are watching developments closely. In developing countries, 90% of the fields are planted with self-grown seeds. An enormous market will emerge there if the industry succeeds in convincing all these farmers over time to buy new seeds every year.

But who owns nature? Plant varieties are cultural assets. They have been bred by farmers over millennia, using continuous selection and adaptation to regional conditions. Now crop varieties are placed under "breeders' rights" protection or even patented after minimal changes, leading to cultivation monopolies.

This development is part of an ongoing trend of privatisation of many things that used to be in the public domain. Privatisation and commercialisation of goods that used to be free, like knowledge or plant varieties, are always followed by control instances and surveillance measures being set up to enforce royalties. The hunger for data and commerce is constantly growing.

But even Saatgut-Treuhand may become obsolete in a few years - as a technical solution for its tasks is in sight. The so-called "terminator gene" makes plants infertile, forcing farmers to buy new seeds year after year. The terminator gene is the seed industry's copy protection. But neither farmers nor consumers will be stupid enough to accept such of potatoes - no matter how big they are going to be.

Dear Saatgut-Treuhand, congratulations for the BigBrotherAward!

The BigBrotherAward 2005 in the "Lifetime Achievement" category goes to the (former) Federal Minister of the Interior Otto Schily (Social-Democratic Party, SPD).

Otto Schily has this year received the most nominations by far - just like he did in 2001, when he won the BigBrotherAward in the "Politics" category for his "Otto catalogue" (a pun referring to the well-known catalogue of Germany's biggest mail order company, as well as a package of security laws introduced by Schily). Within the jury there was wide agreement that this year Schily, as his political career is probably coming to an end, has truly earned the Lifetime award for his "merits" of many years. Still, we are much aware that by honouring him with this negative award we can hardly do justice to a personality as colourful as Otto Schily, or to his complete life effort. We regret that of the wealth of his impressive projects and initiatives, we can venerate only a selection today.

Otto Schily receives the Lifetime BigBrotherAward of 2005

• for the hasty introduction of biometric e-passports, with immature technology and without parliamentary authorisation;
• for his "services" to the extension of European surveillance structures, at the cost of civil rights and liberties;
• for his untiring endeavours to undermine data protection and informational self-determination, under the pretence of advancing security and fighting terrorism - see his anti-terror laws or "Otto catalogues" (a pun explained in the first paragraph above);
• for his essential contributions to the "Major Eavesdropping Attack" (Großer Lauschangriff, the German name for audio surveillance being used on private homes in the course of state investigations), and
• for his assaults on the independence of the Federal Data Protection Commissioner.

Among our laureate's major obsessions is the registration of digitalised biometric features in identity documents. As early as 1 Nov 2005, in other words, in a few days, the Federal Republic of Germany will become the first EU country to include such data in their passports. A contact-less RFID chip that can be read through radio transmissions will store personal details as well as a facial scan, and two digital fingerprints will be added in March 2007. Storing more features such as an iris scan or a genetic fingerprint is possible. The next step will be the introduction of a biometric ID card. (It is a legal requirement to carry one's ID card in Germany.)

With bold disregard of parliaments and data protection concerns and without public discussion, Schily has pushed his favourite project through on the European level - bypassing the German parliament, without a democratic mandate. Rather than giving parliament an opportunity to consider the consequences for data protection and civil rights, he forced a European directive, which achieves immediate legal status in all EU countries. In this way, Schily managed to circumvent § 4 of the German passport law which required the Bundestag (the Lower House in Germany's federal parliament) to pass a law determining the biometric data to be stored.

And it's not just us who regard Otto Schily's actions as deeply undemocratic. When the Federal Data Protection Commissioner, Peter Schaar (of the Green party) criticised this hasty introduction of e-passports through the European back door and called for a comprehensive security concept for protecting the data, Otto Schily accused him of abusing his position. It was not within Schaar's brief to judge the expediency and timing of introducing biometric features, Schily rebuked him via Deutschlandfunk radio and recommended him, overbearingly, to exercise "more restraint", and make sure not to continue abusing his position with uncalled-for objections.

With these self-righteous attacks on the independence of the Data Protection Commissioner, an advice-resistant Otto Schily obviously wanted to silence a competent critic in his own area of responsibility. But it is among the Data Protection Commissioner's duties to make the concerned public aware of the fact that until today there is no open risk analysis assessing potentials of system failure or abuse in biometric passports. A study by the German Authority for Security in Information Technology (Bundesamt für Sicherheit in der Informationstechnik, BSI) says the new technology is neither ready for use nor mature. Face recognition, for example, is very error-prone, if only for the reason that faces change considerably over the years. Thousands of people every day, it must be feared, will be rejected at airports and restricted in their freedom to travel because their digital photos or fingerprints will not be accepted by the software or not pass comparison with their real-life original. The people affected will probably be under burden of proof, and in the worst case come under awful suspicion. Schily is knowingly accepting that risk.

Electronic passports are open to abuse as well as failure. The biometric data can be read at all control points at home or abroad - and the person affected won't know who has access to this sensitive data or what will be done with it. And with the RFID reading process being contact-less, "over the air" and therefore impossible to notice, it can't really be ensured that not only border crossing points but also unauthorised third parties could collect movement profiles from unsuspecting passport holders.

The Green party in the Bundestag has so far managed to prevent Schily's plan of storing all biometric data in one central database. However, a distributed storage structure does still pose risks: With little extra effort, biometric passport data from distributed files could be automatically matched with "wanted" lists, or with fingerprints taken from known criminals or found at crime locations. And digitised facial images could be compared with video footage from public spaces to filter out suspects or wanted persons. A major step towards a general suspicion against all citizens of this country - or all Europeans, because on the EU level there are plans for a central biometric database.

In conjunction with electronic identification documents, a billion-Euro surveillance structure with high risks of abuse is being constructed. The cost of a German passport to the citizen is more than doubling, from 26 to 59 ¤ - what the state subsidy to one e-passport amounts to we won't dare to estimate. But the huge cost is out of any sensible proportion to the alleged gain in security. The e-passport with its biometric features can be manipulated, too. On the other hand, the existing German ID cards and passports are already considered as hard to fake as any in the world. Still Otto Schily presented his biometric project as a great step forward for security and as an important element in the fight against organised crime and international terrorism. With such claims, Schily can achieve no more than nurturing a dangerous illusion of security, because the e-passport does not at all offer an automatic gain in security. Neither the suicide attacks in New York nor those in Madrid and London could have been prevented with the new technology. After all, there is no biometric feature that signals, "This passport belongs to a potential terrorist - please check it before each attempted attack."

Otto Schily has not imposed the e-passport on us as a supposed security instrument, but also as an innovation project to safeguard national industry. Introducing biometrics quickly and before all the other EU member states, he alleges, is in Germany's vital interest. With it "we prove", said Schily in a speech on 2 Jun 2005, "how quickly German companies have adjusted to the new security technology and the future growth market of biometrics." Germany would take a leading role among EU countries in the area of security. However, we regard this scheme as covert subsidy to the industry, for example to Bundesdruckerei GmbH (Federal Printing Office, Ltd), chip makers Philips and Infineon, but also as premature obedience to the US government, which had been exerting massive pressure on European governments on the biometrics issue.

The biometric-digital registration of the whole population is not only a disproportionate violation of informational self-determination but also a declaration of mistrust in the population. They are subjected to a treatment normally reserved to suspects or criminals during police identification. With Schily's biometric obsession, people are degraded to mere objects of state power in the name of assumed security - without this being justified by the individuals' coming even close to being a threat. Otto Schily counters this with the cynical argument of the "dignity of the finger" having no higher value than that of the face (Süddeutsche Zeitung, 24 Aug 2004). He also likes to refer to Spanish ID cards, which already contain (non-digital) fingerprints. But he fails to mention that this measure is a relic from the fascist Franco regime. And he does not discuss the fact that these ID cards could neither prevent the bombings of the Basque ETA nor those in Madrid.

Meanwhile in Germany, even the most die-hard security fanatics will soon stop laughing, because that will not be allowed on the new digital photos - open mouths or glistening teeth could irritate high-tech reading devices. Only a slight grin with closed lips and an otherwise neutral face will be acceptable. The electronic face matching will probably turn full beards, thick glasses, injected lips or nose operations into a security problem, as well as the inevitable consequences of aging such as wrinkles showing up on your face.

With this year's Lifetime Big Brother Award we are honouring the transition of our (originally anthroposophist) laureate Otto Schily from a liberally minded lawyer via a "realist" Green opposition politician to an state-authoritarian Social-Democrat police minister - a metamorphosis that many people find hard to understand. Many, many years ago his name as an eminent legal defender of the extra-parliamentary left, especially in the famous "Red Army Fraction" process in Stammheim, stood for the fight against the deformations of the legal state which it was suffering in the context of the terrorist challenge of that time. It was the time when Schily gave his signature to these warning words from the Humanist Union: "The enemies of the legal state cannot be combated by dismantling it, and freedom can not be defended by restricting it." (1978)

So times are changing - but Schily does not admit to a rift in his biography: From the "terrorist case" in Stammheim to his "anti terror" laws, he sees himself in a continual battle for the state under the rule of law, just playing different roles. But Schily has not only changed roles but sides as well - and that without compromise. The eloquent defence lawyer, who in the interest of his defendants held up principles of the rule of law against authoritarian intrusions, turned - most definitely in his function as Federal Minister of the Interior - into an authoritarian state attorney who extended the powers of the state to the detriment of individual liberties. Schily made the state his client, and he has striven for its authority and strength in an almost fundamentalist way. For a long time he has regarded the fear of the leviathan, the state's power unleashed on the people, a problem of the distant past. The individual, he says, no longer needs to be protected from the state, only from criminality and terror. Any distrust against the state is therefore, in the Schily state, inappropriate, even disgraceful, at least suspicious.

Already as an opposition politician, Schily, having defected from the Greens to the Social Democrats, laid a heavy burden on the ensuing Red-Green coalition, for example with the "Major Eavesdropping Attack". Having been the victim of surveillance himself during the Stammheim case, he now took a crucial role in enacting the required change to the constitution, which would have been impossible without the SPD - a change that undermined the constitutional right of the inviolability of the home. Years later, the Federal Constitutional Court declared the result largely unconstitutional. A move against the constitution - strictly speaking, this should make Schily a case for observation by the Verfassungsschutz ("Constitution Protection", a secret service monitoring extremist groups), but for Schily it seemed to serve as a paradoxical recommendation for the post of Interior Minister, whose brief includes guarding the constitution against subversive activities.

As he was assisting the birth of the "Major Eavesdropping Attack", Schily had even backed a significantly sharper version: he would also have legalised its use against professional "secret keepers" such as doctors or journalists. Since that time there must be reasons to seriously doubt his allegiance to the German constitution, not forgetting that previously he had also been instrumental in the de facto abolition of the constitutional right to asylum. Since then it must be asked: is Schily prepared to stand for constitutional values of liberty and democracy, as every civil servant is required to pledge, or does he tend to continually restrict these values, preferring obedience to the state over civil rights?

With his law and order policies, our laureate has played a central role in the increasing displacement of basic civil rights by current security policies - especially since the 9/11 terrorist attacks. At that time, Schily, as interior minister, announced that the Red-Green coalition would "mobilise all police and military powers that the free and democratic state, the defensive democracy, has at its disposal". With this martial-style announcement Schily unleashed a disastrous bout of legal activism, served the sick security obsession of many citizens, and used it to legitimise long-held plans of "rearmament", which he pulled from the drawers of the powerful, bundled into voluminous "Otto catalogues", and garnished with "anti terror" labels. Instead of daring to tell the truth about risk factors in a risk society, saying clearly that unfortunately it is impossible to achieve absolute security ever, anywhere, Schily and other politicians continue making unsustainable promises of security with symbolic policies.

These so-called anti terror laws, which Schily stands for like nobody else, have given extended tasks and powers to police and secret services. The density of control in state and society was high already and has been raised further. More than before can employees of organisations labelled vital for survival or defence be subjected to security clearances, extending to their partners and social surroundings. This affects institutions that, in the words of the new law, "are indispensable for the functioning of society, and whose disruption would cause considerable unrest in large parts of the population." Among these are utilities such as energy suppliers, hospitals, chemical plants, railways, postal operations, banks, or telecom companies; radio or TV broadcasters could also be affected.

By these laws, Migrants, especially Muslims, are practically placed under general suspicion, declared as security risks and submitted to a rigid system of surveillance. We only need to think of registration of biometric voice profiles and fingerprints, routine consultation of security services, simplified extradition and expulsion procedures. Although there is no real proof of a terrorist risk above that posed by Germans, migrants are often - in spite of the principle of equality before the law - subjected to humiliating forms of "special treatment" with possibly existential consequences.

The "anti terror" laws effect a fateful loosening of data protection, which suits Otto Schily just fine, as he has deemed data protection "exaggerated" anyway - as if suicide terror attacks could be prevented by reduced data protection and more intrusion into citizens' privacy. But in must cases, tightening laws will do little to fight a religiously charged, suicidal kind of terror, and will hardly create security but threaten civil liberties all the same. Many of the anti-terror measures are disproportionate, without measure - showing marks of an undeclared state of emergency and an authoritarian prevention state, where trust and legal reliability are ultimately lost. The presumption of innocence, a vital achievement in a state under the rule of law, loses its power-limiting role with this concept of security. People mutate into potential security risks, and must prove their harmlessness and innocence - while Otto Schily propagates assumed security as a superior basic right. Real basic civil rights, whose purpose it is to defend citizens against state intrusion, are forced into the shadow.

In his missionary zeal as protector of the state, the laureate didn't even stop at extremist demands out of the arsenal of dictatorships. He would love to take "dangerous" people into "preventive" custody, without concrete suspicion. Otto Schily's sometimes authoritarian interpretation of the rule of law is also obvious in the following selection of his state-protection projects.

By establishing a joint anti-terror "situation centre" and a central "Islamist database", he has laid the foundation for a "data compound" of all German secret services and the Federal Criminal Police Office (Bundeskriminalamt, BKA). To link these authorities even more strongly would amount to abandoning the separation, mandated by the constitution, between the police and secret services - which after all was a lesson from Germany's bitter experience with the Nazi Gestapo (Geheime Staatspolizei, Secret State Police). With this, Schily is accepting a concentration of power that would hardly be controllable.

Schily has vehemently put is weight behind plans to store all communication link data - encompassing phone, SMS, email, and internet links - throughout Europe for at least 12 months, to fight terror and crime. So: who has communicated with whom, how often and how long, from where to where, by phone or in writing, which SMS and which internet connections where used, which search engines with which keywords, which websites were visited and with whom was email exchanged? Such unprecedented data hoarding would allow the clandestine exploration of individual telecommunication users' consumer behaviour, behaviour and contact profiles included.

Not even the freedom of the press is safe from Otto Schily. He has incessantly and indiscriminately defended the highly controversial raid of monthly magazine Cicero's offices and the private rooms of one of its reporters by the Federal Criminal Police Office (BKA). It was Schily who authorised this raid after the journalist had (legally) published quotes from a classified BKA paper. As the supplier of the secret dossier, the leak in the BKA, could not be found, investigations were started against the reporter for "assisting the disclosure of a secret" - including hours of searches, and research materials being confiscated by box-loads. The document was not found, but plenty of "chance findings" completely unrelated to the stated reason of the raid led to more investigations. By suspecting journalists of actively taking part in the disclosure of state secrets, it is possible to unhinge the protection of informers and the right to silence in court, values central to the freedom of the press. Such practices can ultimately lead to critical journalists being intimidated and kept from investigative research.

These are the fatal consequences of treating the protection of security on a level equal to a constitutional right, and raising state obedience to a constitutional principle dominating everything else - as our laureate does. It leads to partial despotism, rendering civil rights obsolete. Responding to exaggerated anti-terror measures and an escalating security debate, the former Data Protection Commissioner and chairman of the National Ethics Council, Spiros Simitis, urgently warned: "We have now reached the point where we are touching the foundations of our constitutional guidelines - the transition into a totalitarian society is a gradual process". And sociologist Ulrich Beck sees a connection from the "risk society", which we live in, to a "tendency to a 'legitimate' totalitarianism of threat prevention". Given "the right to prevent the worst", it would only "fall into the all-too well known habit of creating the even worse". Instead of confronting this fatal tendency, Otto Schily has been acting as its wilful executor. Even his ministerial colleague, Wolfgang Clement found poignant words for Otto Schily's liberty-restricting endeavours, looking towards his future after leaving office: "I am a free person and will make use of my freedom now - only to the extent that my colleague Otto Schily will continue to provide, of course ?" (WDR, the public radio station in North Rhine-Westphalia, 10 Oct 2005).

Congratulations for the Lifetime Big Brother Award, Mr Schily.

The Big Brother Award in the "Industrial Relations" category is won by the Lidl Stiftung ("Foundation"), Co., in Neckarsulm, represented by the founder and "godfather" of the group, Dieter Schwarz for the almost slave-like treatment of its employees.

The low-price German supermarket chain Lidl is living proof that it doesn't take the latest technology to keep people under control, and keep them as serfs with no rights or privacy. The Lidl "case" also shows that "data protection" does not mean protecting data for its own sake, but for the sake of protecting people and their personal rights.

Lidl is cheap.

That's why many people will be unhappy to hear that their regular supermarket is driving prices down by treating its workers in inhumane ways.

The reports reaching us from inside the Lidl concern are just unbelievable. They seem medieval, at least pre-industrial, and uncivilised. We will try to break these inside reports to you gently.

Let's start by looking back: to the Future Store. You may remember - in last year's laudation for Metro Group (a different retail chain), we had a wonderful scenario for the supermarket of the future, including this piece:

"Gerd J., supermarket assistant, is excited about the new RFID technology ? Coming home from work, he finds a letter from the executive with a caution. It says he's been to the toilet nine times a day, spending about 72 minutes there on average. This is 27 minutes above the target, an amount that will be deducted from his working time in the future. Shocked, he searchers his supermarket coat and finds an RFID in the collar."

Lidl, too, regards the valuable minutes employees spend on the toilets as a big nuisance. What was solved with High Tech in last year's scenario can be achieved much simpler and, above all, *cheaper*: Toilet visits during working time are forbidden - end of story.

That's no joke. It has been reported from Lidl stores in the Czech Republic.

But, say the reports, there are exceptions, after all, you mustn't believe they're inhuman: Female employees having "that time of the month" are allowed to go to the toilet, apparently. Although, in order to gain that privilege, they must be wearing a widely visible head band. A disclosure of personal data, without a computer or even a byte being involved.

On that account, a simple solution. And, most of all, *cheap*.

You can't understand either why the Czech press was kicking up a fuss about the German supermarket chain, can you?

The leading retail newspaper Lebensmittelzeitung (Food News) reports that the scandalous head band rule has now been abolished by Lidl.

UNI commerce is an international trade union for employees of multinational companies. They raised the issue at the so-called "social dialog" at the EU in Brussels in late September and called on Lidl to apologize to its workers. Lidl denied the reports, saying they were nothing but rumours.

But don't be tempted to believe that we're getting such reports from Czechia alone! The following items are from Germany:

• Bielefeld. An anonymous nomination for the Lidl group is received by the Big Brother Awards jury. They start to investigate. 
   
• The Nuremberg region. The deputy manager of a Lidl store is handing in her notice, after a three-hour long "third degree" interview from the management of the sales department. Also present are an auditor and a Lidl lawyer. The official charge is a theft of 12,50 Euros of deposit money. The auditor is dictating what she is to write in her notice, and she is writing it there and then. "I was threatened. The psychological pressure was so strong, I would have signed my own death warrant", she says to a journalist. She had been been happy to work 60 to 90 minutes of unpaid overtime per day. But six years ago she had successfully intervened to have Lidl pay overtime to other employees. 
   
• Ansbach. Lidl store employees are getting their working time paid until 8 p.m. exactly (the time when shops close in Germany). But they normally have work to do until about 10. The early shift starts at 6 a.m., but paid time only starts at 7.30. Lidl calls this overtime "voluntary preparation and completion work". 
   
• Schleswig-Holstein. In an annex to an employment contract, the following clause is found: "The employer is given the right to check the employee's bags." Several Lidl workers report anonymously to the ver.di trade union that while being away on sick leave, they have been visited at home by Lidl supervisors.
   
• The Nuremberg region. The deposit refund counter in a store has been fitted with a video camera. Not even the store manager or his deputy have been informed. The two noticed a new hole having appeared in the ceiling when they came into the store one morning and found the doors having been locked in an unusual way. They suspected a break-in at first and reported their findings to the centre. The sales manager then tried to cover up the installation of the cameras. At what times the camera at the refund counter is active, who gets to see the recordings and when they get deleted is completely unclear. The formation of "workers' councils" (i.e. the right, guaranteed by law to the workforce of companies above a certain size, to elect representatives, which would then have negotiating rights on several issues including employee surveillance) has been "suppressed by the company, with determination and by the toughest measures", according to representatives of the ver.di union. 
   
• Saarland. According to the ver.di union, baby phones have been found in Lidl stores, near telephones and in staff rooms. At the same time cars thought to belong to sales department managers were seen in front of the store. It is suspected that these cars were used to eavesdrop on conversations. 
   
• November 2003. Former Lidl store managers report that they were instructed to check employees' hand bags, coat pockets, car boots and glove boxes every two weeks. 
   
• The Nuremberg region. Since January 2004, employees of a Lidl store experience a flood of test buyers and other inspections. These accusations are raised by a deputy store manager who says she was forced to hand in her notice. Other employees confirm to the ver.di union that test buyers setting certain traps are a frequently used method to force employees in higher wage groups and union members out of their jobs.
   

But: Lidl is cheap.

Employees are not the only cost factors, taxes are another unpleasant side effect of entrepreneurial activity. And when it comes to taxes, you could hardly accuse Lidl of being negligent about privacy.

Lidl is among some 460 companies who have set themselves up with a letter-box in the North Frisian village of Norderfriedrichskoog, which by pure coincidence didn't charge any local business tax before this year. They reside there under an inconspicuous name: Alpha Finance, Ltd.

Lidl, or rather, the Schwarz Group, is a convoluted empire of about 600 singular companies and "foundations". By splitting up into so many companies, the concern is extremely hard to oversee, and many subsidiary companies evade legal publishing obligations.

There are no publications of any company internals. At Lidl, not only the company results but even the number of stores are "classified" information.

And to Mr Schwarz, the master of the Lidl empire, his own privacy is very dear indeed. He takes extra care to ensure that no photographs of him exist - that's why he has stayed away from honour ceremonies far more flattering than the Big Brother Awards.

Lidl is cheap.

And Lidl exemplifies a philosophy that is supported by many business leaders in the current climate of a weakening economy: the environment, human rights, human dignity, freedom of opinion, worker's rights, basic democratic rights - nothing but expensive luxuries that businesses don't want to afford.

But we should ask: Can we in the 21st century afford this kind of business? Can we afford to shop so cheap? Is it worth the price - the price people pay when they must hand in their civil rights at the company gate, to avoid losing their jobs? This is a question that every single customer should ask.

Congratulations, Mr Schwarz.

The Big Brother Award in the "Communications" Category goes to Armex Ltd. company from Gladbeck for their "Track Your Kid" product - as a representative of several companies that offer child monitoring services.

Nobody would consider putting their child on a leash. The same thing in electronic form doesn't seem to trouble many people, though - otherwise companies such as Armex Ltd. could not make money from concerned parents.

Track Your Kid makes use of the locating services made possible by today's mobile phone networks. By measuring distances to transmitters, the current position of a mobile phone can be determined with a margin of error far below 100 metres.

Armex, as a supplier of a so-called "value-added service", uses this feature to enable parents to locate their mobile-carrying children, or rather their children's mobiles, at any time. The role played by Armex is not unlike that of a detective agency: parents send a query message by SMS and receive an SMS response containing the mobile phone's position. The mobile phone operator will pass on location data to Armex after receiving a signed order from the parents.

If the enthusiastic praise that "Track Your Kid" and similar products are receiving on the media and parenting websites is to be believed, this idea is a perfect match with many parents' wishes.

On second thoughts, considerable doubt is creeping in.

1. Is there a need?

What good does it do if I can know when my child is going to an "undesirable" neighbourhood? Could I actually do anything in the worst-case scenario of an abduction? Wouldn't we immediately expect an abductor to throw the mobile into a waste bin - or a child do the same, if it was going to run away?

What do parents actually intend to do with the news, gained by "tracking down" their "eloper", that he or she strayed from the usual path? Hold a punitive sermon? Call the police? Will Mom leave her work each time to deliver a speech "on location"?

Questions like these don't meet with much approval from parents. It's often taken as granted that the child's welfare comes before everything else - even before its right to a personal space. "With Track Your Kid you have everything under control", promises provider Armex. Exactly there lies the mistake. What seems like a security gain for the child is more like a purchase of self-assurance for struggling parents.

And data protection and the right to informational self-determination are not "adult rights" that can be withheld from children, even by their legal guardians. Speaking of legal issues, from the age of 14 the child's consent is required for the tracking of its mobile phone, as data protection experts have pointed out clearly.

2. Abuse is possible

The jury is appalled by the naive attitude with which Armex are trying to comply with the letter, if not the spirit of privacy regulations. On a closer look, the measures deter potential criminals by nothing more than a raised finger of warning.

When issuing an order to Armex, customers are actually required to prove with a copied receipt that they "own" the telephone number to be tracked. But this question is not asked in the online order form. A signature under a simple declaration of ownership seems to be enough for Armex.

Also, experience shows that a spouse or partner will have few problems faxing your mobile phone contract off to Armex in secret.

And there is a very simple way to get anyone's mobile tracked, with just a small amount of criminal energy:

What Armex is actually tracking is not the mobile phone itself but the SIM card inserted into it. This card is where the telephone number is stored, the surrounding phone can always be replaced. With only a little imagination it is easy to come up with a scenario where SIM cards are smuggled into victims' mobiles at least temporarily, in order to track them during that time.

The relationship between employer and employee makes such a trick even easier. Company mobiles are ordered, maintained and administrated by the company. It is then so much simpler to make monitoring the inefficient field worker, or the troublesome union representative, a reality.

3. And "normal" use is abuse, too

Despite all sympathy to parents concerned for their children's wellbeing: Bringing up a kid includes the task of preparing them for a life of self-determination, and teaching them values of a liberal society. Will this society be able to understand personal freedom as a vital value, and defend it, if a majority of its members has been accustomed with constant monitoring from an early age? (This has been termed "surveillance socialisation" by the TAZ newspaper.) How can a person brought up this way grasp that human, socially compatible behaviour is best based on insight - not on the fear that any misbehaviour might be uncovered by permanent surveillance? Schemes like Track Your Kid breed incapacitated people who never take responsibility for their own behaviour.

Parents should think twice before adapting their kids to a normality of constant surveillance, for the imagined benefit of a little extra security.

In any case, the jury is hoping that kids will outsmart their parents and discover the relevance of that little button with which the "electronic shackle" can just be switched off. After all, a device that does not send any signal can not be located.

Congratulations, Armex Ltd.!

The BigBrotherAward in the "Business and Consumer Protection" category goes to Tchibo direct, Ltd. for the practice of forwarding their customers' data to the marketing company Arvato / AZ Direct.

There is nothing new about Tchibo extending its range beyond coffee, the product which started the business of this German chain. These days garden equipment, aroma candles and pyjamas can be bought in Tchibo shops, by mail order or online. What ordinary customers don't know is that addresses are available as well. But these are not advertised in the Tchibo catalogue or on the website - because, as one would expect, the addresses sold by Tchibo are those of their own customers.

The Tchibo catalogue says:

"All personal data is treated as confidential."

The website expands on this:

"The personal data you submit on the Internet will not be passed on to any unauthorised third party outside of the company Tchibo."¹

So, at first sight it would seem that Tchibo treat their customers' personal data responsibly.

What is really happening to customers' addresses is revealed by the sales brochures of AZ Direct, a company within the Bertelsmann group. AZ Direct are selling Tchibo customer addresses:

"You are looking for mail order customers who care about a strong brand as well as about value for money? You need addresses of families who purchase with a mind for variety and quality? You need to find customers that frequently and spontaneously order products from a catalogue for themselves and their families? Then Tchibo's customer base is just right for you."

AZ Direct Ltd. can apply detailed selection criteria to Tchibo customers. Among these are demographic and geographic items as well as indications whether these customers live in their own houses or in flats, how likely they are to shop by mail order and what purchasing power they have. Which also proves that Tchibo are gathering much more than just address data.

It makes one wonder who these "unauthorised third parties" are that Tchibo will not pass the data on to - companies unwilling to pay?!?

But wait, there is a notice in the Tchibo catalogue (but not on the website), at the very bottom the page with the telephone number, in white letters just 1 millimetre high and barely readable: "However, we may share your information with our partners. We or they may contact you for marketing purposes by mail. If you do not wish to be contacted by others for marketing purposes, please tell us."¹

Aside from the fact that hardly anyone will read this, there isn't even a hint how customers should "tell us". It is down to the customer to contact Tchibo specially.

With this outstandingly brazen way of forwarding customer data, Tchibo are guilty of a grave violation of their customers' privacy. "All personal data is treated as confidential" - they could hardly be further from the truth, and customers are never told what is happening to their data.

The "glass customer", whose living and consuming habits are stored and evaluated in detail through hundreds of databases, has no place in a liberal and democratic state. It's time for the legislature to stop such activities in their tracks. A draft for a new data protection bill has long been rotting away on the interior ministry's shelves. High time for the red-green coalition to get its act together!

Congratulations, Tchibo direct Ltd.!

The Big Brother Award in the "Health and Social Issues" category is awarded to the Federal Minister for Health and Social Security, Ms Ulla Schmidt, for the bill for the reform of the national health insurance, which came into force on the 1st of January 2004.

This law is making a fundamental change to the way data is processed at health insurances, leading to massive degradations of patient privacy. Health insurances are no longer accounting health expenses based on anonymous "cases": they now need to be given, in addition to bills from pharmacies and hospitals, those for each individual surgery visit - complete with personal data! Health insurances are thus in effect accumulating full disease profiles for all their members.

The data protection authorities on the national and state level have warned about the following side effects in September 2003:

• "The new remuneration system is going to involve the processing of invoices for surgery treatments with personal and diagnosis details by health insurances. With the planned reform, health insurances are going to gather comprehensive and intimate information about their 60 million members. The dangerous vision of a "glass patient" is drawing closer. These risks could have been avoided with privacy-friendly technologies such as anonymisation. Unfortunately, such opportunities have been missed completely."
• "Barring strict restrictions on use, this data could be evaluated by health insurances by all kinds of criteria, e.g. using 'data warehouse' software."

These cautions were thrown to the wind, the health reform bill was passed as drafted by the health minister.

Until now doctors gave their invoices to their representative organisation, the Kassenärztliche Vereinigung (association of statutory health insurance physicians), which passed accumulated costs on to insurances, received insurance payments and distributed these back to the doctors. This system ensured that insurances did not have complete knowledge over individual members' diagnoses and medical costs. This was to prevent insurances from influencing medical decisions on economic grounds, such as "putting off expensive patients". Now insurances receive full treatment and medication data, which they could use to take manipulative action, e.g. delay or refuse payments. The data is encoded using a modified version of the WHO's ICD-10, the International Classification of Diseases. It covers the whole spectrum of medical or psychological diagnoses, regardless of whether these are actually needed for the purpose of billing. This key includes sensitive information about patients' personality or living conditions, such as - among thousands of other labels - whether someone has an "excessive sexual drive" (Code F52.7) or is practicing "fetishistic transvestism" (Code F65.1). There might be circumstances where such items might help a doctor make a professional and comprehensive anamnesis. But they are of no concern to health insurances. By the use of these codes, the doctor's obligation to silence is practically abolished.

Health insurances want to minimise their financial risk. They are therefore interested in as detailed and individual data as they can get, to filter out expensive patients. This "hunger for data" is increasingly endorsed by the health minister, under the misleading label of "modern healthcare". For example, as a part of a "Disease Management" programme she made sure health insurances were given extra documentation about chronically ill patients. Because insurances are having a hard time dealing with those large amounts of data, she has (in breach of the principle of secrecy of social data) allowed data processing to be outsourced to private IT service providers, who might even carry out the processing in another country with lower levels of data protection. The central databases planned by the health minister are supposed to let health insurances assign a "morbidity factor" to members, giving rise to an estimate of the individual cost of future illnesses. This was introduced with the justification that insurances needed to balance their structural risks. But assessing individual health costs is bound to lead to a multi-tier health system. At the same time, insurances have been granted the right to give individual health advice to their members, which until now had been reserved to a separate "medical service".

With this background, the introduction of the electronic health card planned for the beginning of 2006 must be looked upon with extreme scepticism. It has not been decided yet who should be given what kind of access to the data linked to the new card. But there is a danger that patients will in practice be forced to disclose even more data about their health needs, and even if it is against their will. An electronic health card is only acceptable in conjunction with strict data protection rules!

The principle of secrecy of personal medical and social data, which is still valid today, is supposed to give health insurance members assurance that what they discuss with their doctor is confidential and will only be used for the immediate purpose of treatment. With the so-called health modernising bill, the health minister is more and more abandoning this Hippocratic ideal.

Congratulations, health minister, Ms Ulla Schmidt. If you are going to introduce the electronic health card as planned, you can keep the 28th of October 2005 free in your diary. That's when the next Big Brother Awards will be announced.

The Dean of Paderborn University Prof. Dr. rer. nat. Nikolaus Risch for the video surveillance of lecture halls and computer rooms in "his" university.

By using video cameras, Dr. Risch is perpetuating the present misconception that "surveillance" would equal "security". The cameras purpose, according to the official statement, is to prevent theft of computers and projectors. Dr. Risch, a representative of our educational elite, has thus fallen for the propaganda of the - to use a terribly misleading term - "security industry".

Dear Dr. Risch: Cameras do not prevent theft. That's what locks, metal ropes and clamps are for. Video cameras are expensive and passive. They only record, and there is a possibility that these recordings might be used as evidence after a crime. But video cameras also violate the privacy of your students, the young people for whose unrestricted mental development you are responsible. Video cameras unsettle and inhibit people as they can no longer feel unwatched. Which student would want be seen picking his nose on some cable channel showing "The World's Most Stupid Students"?

And it's not just plain old cameras that are watching auditoriums. Dr. Risch has even opted for dome cameras, where people can't even see which way the camera is looking. There is only one conclusion: what this surveillance scheme is about is the omnipresent Big Brother's eye, about installing a deterrent and instilling a feeling of "they are watching you everywhere".

Every year the Big Brother Awards jury is swamped with dozens of letters from people complaining about video surveillance threatening to become an omnipresence. There are absurd, very absurd, utterly absurd and mega absurd cases of video surveillance.

Some examples reported to us this year:

The senate of Hamburg would like to cover the whole city with video surveillance. Seems that even after the exit of far-right populist Roland Schill's party, the governing coalition is still out of its senses.

A McDonalds restaurant in the town of Gießen has introduced video monitoring, so now the world knows that this is an extra-dangerous place. Perhaps "Honey Bunny and Pumpkin", the gangster couple from "Pulp Fiction", had better wear masks for their own safety here, if they decide it's worth a raid.

We can hardly keep count of public transport companies introducing video equipment. If travelling without being filmed is what you want, you can forget about public transport: it's practically impossible to escape surveillance in stations, buses and trains. As early as 2000 we awarded Hartmut Mehdorn, head of German Railways, in the "authorities and administration" category for his "3S" scheme ("security, service, spotlessness"). [Yes, we were aware that German Railways is actually a plc, no longer an authority.] Not a single camera has been removed so far.

In Nuremberg, there is a plan to phase out staff in the underground system, setting people free to join the 1-Euro job market probably. Underground trains are to run fully automated, while stations of course are to be fully monitored. What is being sold as a technical necessity, and some times as "vandalism protection" is in fact nothing but a huge transfer of money to the electronics industry. The service contracts for these systems are "golden cows" for their makers.

If there is no unmonitored train journey, is the car the last refuge? Far from it. The German road toll system, which received the Big Brother Award in 2002, is technologically an advanced video surveillance system. It would cover all kinds of roads and crossings all over the country, recording all vehicles with their registration numbers and processing their data in order to "award" fines and penalties. If for example, one would set off in the centre of Kassel at 12 p.m. and arrive 50 km south in the centre of Göttingen just 20 minutes later, it would be clear that speed limits must have been broken.

That's not a joke - schemes like that have not only been suggested, there have even been pilot projects, some of them illegal.

There is hardly a village these days where town councillors or mayors are not thinking aloud of video-monitored bottle banks. Looking through regional papers on the internet, which often publish the records of town council meetings, one might be forgiven for seeing oneself in a madhouse, where the patients administrate themselves. One silly scheme of video surveillance after another is designed and trumpeted.

Freedom and human rights don't seem to matter. Only in the cage are we really free, seems to be the motto. To every inmate their own private security troll!

The most beautifully absurd example reported to us comes from the town of Montabaur. To quote the report:

"The mayor of Montabaur, in his function as head of the local police, is having video material - recorded by traffic police looking for speeding offences but not actually capturing any such offence - analysed to find drivers whose facial expressions or gestures would suggest an insult against traffic wardens, in order to report such findings to the authorities."

It is this trend of thoughtless stupidity that is now joined by the dean of Paderborn University. A university - in contrast to a bottle bank - is supposed to be a place of education, wisdom and enlightenment. In the words of Immanuel Kant himself: Sapere aude! Have the courage to use your own wisdom.

The university of Paderborn especially deserves this award because in his welcome message the dean underlines the motto of the "university of the information society". According to this message the university wants to "advance the scientific and technological development of the information society, provide guidance and criticism, open the eye for fundamental values of our culture but at the same time use opportunities given by the knowledge or information society."

This ambition is not fulfilled if the university does not engage in discussing the consequences of uninhibited use of technology. Because you, Dr. Risch, have not lived up to your function as a role model, but rather approve of surveillance measures just like any small mayor, shop owner or party populist, you are recognized in this year's Big Brother Awards.

Congratulations, Prof. Dr. Nikolaus Risch.

The BigBrotherAward in the "Communications" category is given to T-Online, plc for their long-time storage, against data protection laws, of telecommunications link data.

The German "Teledienstedatenschutzgesetz" (telecommunications data protection act) allows the storing of telecommunications link data only as far as required for accounting purposes. This rule, prohibiting a "hoarding" of data, exists to protect internet users from being traced months after a connection was made. If the internet connection is unmetered (charged at a "flat rate"), payment is not linked to individual dial-up events, so there is not even a hint of a reason to store the so-called IP address - which enables ISPs such as T-Online to trace logging data from servers on the internet back to the actual owner of the line. But even if net access is paid per use, the IP address should not be relevant for billing, only the actual time a connection was made.

The principle of avoiding unnecessary or excessive data forbids storing personal information without a compelling reason. In the past, ISPs have been keeping this data for extensive times simply out of convenience. Under pressure from data protection authorities and customers, more and more ISPs have now moved to deleting IP address data as soon as a connection is closed. Not T-Online, who refused taking on such a policy with the argument that IP addresses had to be kept in order to verify and ensure an undisrupted service. T-Online sees storing IP numbers for 80 days as a necessary means of research in cases of abuse, such as hacking or sending viruses, even if no such abuse or virus infection is detected. Verifying bills does not require IP addresses, and competitors are not noticing an increase in disruptions of service. But T-Online, the largest German ISP, are giving no justification apart from letting us know that their data protection authority, the district government of Darmstadt in Hesse, had confirmed their position that "data austerity" was not a principle they would need to adhere to. Their illegitimate practice of data accumulation has been given a blessing from the authorities.

The effect of T-Online's storing of IP addresses is an obvious intrusion into their customers' privacy. The anonymous use of the internet, explicitly safeguarded by law, is being undermined. And it isn't just T-Online that can access the stored data, police and other institutions in a position to claim interest, such as intelligence services, can read it as well. These authorities are increasingly making use of such data that by law should not even exist in the first place, breaking the privacy of telecommunications for even the pettiest reasons. An internet user in Münster was dragged to the courts, having been found through this data, because he had made satirical comments on the internet about the 11th of September 2001. Participants of music file sharing services can be identified and pursued. The long-term storage of IP addresses turns the internet, which was supposed to be an instrument of free expression and information, into a tool of control and surveillance. T-Online's colleagues from the Telekom phone company were recently complaining how rudely the police were dealing with them, trying to get at customers' data with nothing but forms, without examining the legal position for individual cases, and threatening to prosecute for perverting the course of justice. T-Online, in contrast to Telekom, are readily supplying their customers' data, and they are even collecting it for that very purpose.

But instead of openly admitting to their violation of the law, T-Online pretend in their so-called privacy policy that IP addresses are just accounting data, which they would be allowed to store for up to 80 days. Granted, T-Online are not the only ISP storing link data for excessive periods of time. But as a prominent representative of the business they must not lead by bad example, and least of all must they participate in bending the law with the aid of their supervising authority. The Big Brother Award jury is calling on T-Online to delete this data immediately after connections are closed. Because T-Online hasn't followed this complaint from its customers even after sustained criticism was voiced throughout Germany, they richly deserve the Big Brother Award. If the company should finally be convinced to improve their behaviour, their customers as well as the BBA jury would surely be grateful. But so far we are unable to report such a change. Therefore:

Congratulations, T-Online.

The Big Brother Award 2003 in the category of State Authorities / Institutions is earned by the government of the United States of America for their coercion of European and especially German airlines into granting various US authorities access to the vast amount of data related to the bookings of all passengers travelling to or via the United States.

The Big Brother Award 2003 in the Category of State Authorities / Institutions is earned by the government of the United States of America, for their coercion of European and especially German airlines into granting various US authorities access to the large amount of data related to bookings of all passengers travelling to or via the United States. Many people will ask why the German Big Brother Awards should consider the government of another country for a "prize" when there is a Big Brother Award in that country as well. But since the recognised measure does not primarily affect US citizens (residents), but foreigners such as Europeans and therefore Germans as well, the jury decided to give the award to a non-German state institution this time. That is not supposed to mean that no German authorities had been conspicuous with prize-worthy behaviour, only that the US government did surpass them in their disregard to data protection and privacy. The bad habit of using the fight against terrorism to erode civic rights is widespread in many countries, including Germany. And by the way, in the year of the attacks on New York's World Trade Center, 2001, it was the German interior minister Otto Schily who received the Big Brother Award for his surveillance laws enacted in the name of fighting terror. Since March 5th, 2003, European airlines are giving US customs authorities access to passenger data. There are around 40 items that have to be revealed, ranging from actual flight (flight number, route, date) and purely personal data (name, date of birth, address, phone number, travelling partners) to information such as credit card details and meal preferences, hotel bookings and car rentals.

The German airline Lufthansa, for example, opened its booking system AMADEUS directly to access by the US authorities. As a result, the transfer of large amounts of data is potentially affecting all passengers, not just those flying to the US. This is because there is as yet no means of technically restricting the access to US-bound passengers. The US authorities have promised only to access data related to US flights, and this is to be verified by activating certain logging functions - but whether these logs can actually be evaluated and what should happen if the US authorities do access other data is unclear.

Once again it shows that the US government see it as their right to internationally press through regulations that they regard as legal, even against the resistance of sovereign states and against international law. The legal foundation cited is the "US Aviation and Transportation Security Act" of Nov 19, 2001, as well as the implementing regulations adopted by the US customs authority. The fact that this is a severe intrusion against the right to informational self-determination as well as a breach of European data protection legislation, and therefore a violation of sovereignty of democratic states, seems to be of no interest to the US government. If access is not given, there will be no landing permission, goes the simple and convincing "argument" of the US authorities.

Up to 11 million passengers on transatlantic flights are affected by these data transfers. These are processed in a system named CAPPS (Computer Assisted Passenger Pre-screening System) that will assign one of three categories to a passenger. The green category signifies "minimal risk", yellow calls for "heightened security measures", and red will "alarm security forces for eventual arrest". The planned successor, CAPPS II, is supposed to achieve this within five seconds. The kind of excess that might result is demonstrated by the experience of two peace activists who got onto a "no fly" list and were held at San Francisco airport in August 2002.

What little priority is given to data protection in the design of such systems is illustrated by the fact that a "privacy impact assessment", required for the release of further state funds, has not yet been made, although the developing company has been announcing it is going to work on it for the last two years. Interestingly, the restrictions currently planned for the amount and duration of storage only benefit US citizens. Non-US citizens seem to be regarded as free game.

In an agreement with the EU Commission on Feb 18, 2003, the US customs authority has obliged to respect the basic principles of European data protection laws - it did promise, for example, not to inspect particularly sensitive passenger data and to use what it does see only for lawful purposes. But an understanding which data is to be regarded as sensitive still has not been reached. And which purposes are lawful is of course not decided by the European Commission but by the US legislative.

What is already known is that the US wants to store all retrieved data for a period of seven years and not restrict its use to the fight against terror. After those seven years the intention is to store the data for another eight years in a "deleted record file". Objections raised by the European institutions that this extent of storage and use are not in the spirit of European data protection laws have been brushed aside as legal nit picking in face of the dangers posed by international terrorism. This seems typical of a very one-sided idea of freedom by the US government.

Congratulations to the government of the United States of America for the Big Brother Award 2003 in the state authorities/institutions category.

The winner of the regional prize of this year's Big Brother Award is the Interior Senator (minister) of the federal (city) state of Berlin, Dr. Ehrhart Körting, for his more than dubious justification for the use of the so-called "silent SMS" by Berlin police. The Senator did admit that reservations against this practice voiced by data protection advocates were serious. But, as we can read in the proceedings of the Berlin senate, a decision had to be made "whether to protect culprits or victims" (cf. Drucksache 15/1834). He is intentionally overstepping the boundaries set by present legislation, which gives no legal foundation for the practice of locating criminal suspects with these "silent text messages".

To locate people in this way, the police are making use of the fact that a mobile phone, for technological reasons, reveals its location with a precision of up to 50 meters with each communication. The police send a text message with no content to the affected person. The mobile phone communicates with the network in just the same way it does for every other text message, but no message is displayed to the user, and the usual sound signalling the arrival of a message does not occur either. But a "silent" message does create a record of "link data" in the network, which the police can use to locate the suspect. This procedure, called "pinging", is made possible through software already in use by the German border police. And it has been used in the state of Baden-Württemberg in cases of hit-and-run accidents.

Berlin police did obtain - somewhat dubious - judicial orders for this procedure. But the question of a legal basis is not sufficiently answered by that.

The quote by the Berlin Interior Senator touches on an existential aspect of the rule of law, the relationship of executive and legislative bodies in the process of establishing new powers of state intervention. That is the important issue. We are not going to elaborate on the effects of "silent text messages" on the privacy of communications, a basic right, safeguarded by the German constitution, that is currently under severe attack anyway. Suffice it to say that the former judge at the Federal Constitutional Court (Germany's highest court), Jürgen Kühling, has described the relevant Article 10 of the constitution as a "total loss" (Grundrechte-Report 2003).

Why then are we awarding Dr. Körting? Above all for his act of ignoring legislation that is there to restrict state intervention into citizens' rights.

Sending a "silent text message" is in intrusion into the privacy of telecommunications protected under article 10 of the German constitution. This protection goes beyond communication, affecting the state of being ready to communicate as well. The privacy of an exchange of thoughts is endangered as soon as people have to assume that a mobile phone they have switched on but are not using will become an instrument of covert surveillance. An intrusion into telecommunications privacy requires a specific and clear legal basis, which makes its preconditions as well as the extent of the resulting powers clear to citizens.

Such a legal foundation obviously doesn't exist, a fact that our winner seems to acknowledge as well. To bridge the gap between non-existing laws and the measures already practiced by Berlin police, the Interior Senator is using the notorious rhetoric that data protection should not become "crimes protection". But: if data protection is to deserve its name in a society under the rule of law, it cannot provide unchecked access to citizens' data. From this perspective the code of procedure, for example, is a legal instrument that does inhibit the work of penal authorities, because under it not every means of investigation that might lead to success is permissible. The maxim that the end justifies the means is not appropriate under the rule of law.

Now, the legislative could of course seek to relieve any feelings of bad conscience we might have raised and legalise these measures in retrospect. But wouldn't that just replace the process of democratic discussion by the (police) power of fact?

For raising the need to debate these and related questions, the current Interior Senator of Berlin truly deserves the Regional prize of this year's Big Brother Award.

Congratulations, Dr. Körting.