American Surveillance and German Constitutional Law

Before I started writing mainly on energy issues as a consequence of the Fukushima accident, I had some interest in Constitutional law issues of privacy of telecommunications. I recall having translated into Japanese the 2010 decision of the German Federal Constitutional Court on storage of telecommunication metadata.

I was reminded of this because of the recent revelation by SPIEGEL magazine, based on documents leaked by Edward Snowden, that the United States is storing half a billion communication metadata a month for Germany.

This does seem to be rather clearly illegal under German Constitutional law standards. Let’s just quote one short part of the above decision:

Auch bleibt die Speicherungsdauer zeitlich begrenzt. Zwar ist eine Speicherungsdauer von sechs Monaten angesichts des Umfangs und der Aussagekraft der gespeicherten Daten sehr lang und liegt an der Obergrenze dessen, was unter Verhältnismäßigkeitserwägungen rechtfertigungsfähig ist. Nach ihrem Ablauf kann sich der Bürger jedoch darauf verlassen, dass seine Daten – sofern sie nicht aus gewichtigem Anlass ausnahmsweise abgerufen wurden – gelöscht werden und für niemanden mehr rekonstruierbar sind. (215)

The duration of the data retention is limited in time. A duration of six months is very long, considering the amount and significance of the stored data. This is at the upper limit of what can be allowed considering the requirements of proportionality. But after those six months, citizens can rely on the fact that his data are deleted and can’t be used anymore by anyone, except in cases where they have been accessed for important reasons. (Found at paragraph 215 in my translation, emphasis added).

Turns out that citizens can’t rely on that at all. While German telecommunication service providers might delete after six months, the NSA probably does not. The Federal Constitutional Court’s opinion is somewhat naive in assuming that the Americans don’t suck up all telecommunication metadata and keep them for eternity. They didn’t even think of that possibility, as far as one can tell from the opinion.

But it is quite clear from that paragraph that it is completely out of the question to defend this kind of outrage as compatible with German Constitutional values.

The German Federal Prosecution Office (Bundesanwaltschaft) is considering starting investigations against the perpetrators of these acts, see this report at Tagesschau (in German). Many German and European politicians are angry right now.

To me, the news from the Snowden revelations is not that the United States is sweeping up and storing gigantic amounts of data. I would never have assumed anything else. The news is that European politicians are not quite prepared to accept this wholesale abolition of the human right to privacy of telecommunications.


Published by kflenz

Professor at Aoyama Gakuin University, Tokyo. Author of Lenz Blog (since 2003,

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