Germany: Shooting down aircraft and analyzing
computer data
Raymond Youngs*
Right to life—right to control information about oneself—control of terrorism—shooting
down hijacked aircraft—computerized data analysis to identify “sleeper” terrorists—articles
1(1) and 2(1) and (2) of German Basic Law—comparison of constitutional law in Germany
and United Kingdom
Introduction
The German Federal Constitutional Court heard two significant cases in 2006
concerning the control of terrorism. They were concerned, respectively, with
(a) whether it is lawful for the state to shoot down an aircraft that terrorists
have hijacked with the intention of crashing it into a selected target, and
(b) whether the state may collect computerized data about a section of the
population and compare this with other data in order to identify potential
subjects for surveillance. The Court found that any authority to shoot down
hijacked aircraft with innocent persons on board violated the right to life
under article 2(1) of the Basic Law,1 and any order to collect and compare
personal computerized data (unless a concrete danger to certain high-ranking
interests were present) violated the right to the free development of the personality under article 2(2).
These cases may be considered in concert because both significantly restrict
the powers of government in the context of efforts to deal with new threats created by modern terrorism. They also exemplify the application of article 2 of
the Basic Law in combination with the concept of human dignity enshrined in
article 1(1).2
Although article 1 is—in its terms—absolute, article 2 is not; the right to
free development of the personality in paragraph 1 is subject to the rights of
others, the constitutional order, and the moral law, whereas the rights to
life, physical integrity, and freedom in paragraph 2 can be abridged only on
* Senior lecturer, Kingston University; senior research fellow, Institute of Global Law, University College
London. I am grateful to Penny Darbyshire and Nicola Aries of Kingston University for valuable comments and,
in particular, to Karen Barrett and Norman Dorsen. Email: [email protected]
Article 2 of the Grundgesetz [GG] [Basic Law] reads: “(1) Everyone has the right to the free development of his personality, insofar as he does not injure the rights of others or violate the constitutional order or the moral law. (2) Everyone has the right to life and physical integrity. The freedom
of the individual is inviolable. These rights may only be restricted on the basis of a statute.”
1
2
Article 1(1) of the Basic Law states: “The dignity of the human being is inviolable. It is the duty of
all state authority to have regard to it and to protect it.”
© The Author 2008. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
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the basis of a statute. Infringements of either paragraph’s provisions must
comply with the principle of proportionality,3 the need for certainty, and
clarity of the relevant norm,4 as well as the principle that the essential content of the right must be left untouched.5 These cases also have in common
that they are illustrations of the principle of proportionality in its sophisticated German form.
The analysis that follows demonstrates the novel and controversial nature
of both cases. It also shows that they impose greater limitations than exist, for
example, in the United Kingdom; that the effect of the first case and merits of
the second are disputed; and that both open a debate on the stance of the
German state in relation to its past.
1. The aircraft case and the right to life
1.1. Facts
The German government’s concern about the possibility of hijacked aircraft
being used against targets had arisen not only from the attacks in the United
States on September 11 but also from an incident where a deranged man had
seized an aircraft in January 2003 and threatened to fly it into the European
Central Bank in Frankfurt-am-Main.
The case before the Court6 concerned the constitutionality of section 14 of
the Air Safety Act (Luftsicherheitsgesetz),7 which provided that the armed
forces might, to prevent the occurrence of an especially serious accident, divert
an aircraft, force it to land, threaten the use of armed force, or give warning
shots (para. 1). They were to choose the action expected to harm the individual and the general public the least and to implement it only to the extent
required for the purpose; it should not cause harm out of proportion to the
result sought (para. 2). Direct action by armed force against an aircraft was
permissible if it could be assumed that the aircraft was going to be used against
human life and that such force was the only means of preventing this imminent danger (para. 3). This action could be ordered only by the federal minister
for defense (or another member of the federal government deputizing for him)
(para. 4), and it could be taken only after investigation and attempts to warn
and divert (section 15, para. 1).
3
See, e.g., Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 30, 2005,
2 BvR 1772/02.
4
See, e.g., Bundesverfassungsgericht [BVerfG] July 27, 2005, 1 BvR 668/04.
5
Article 19(2) of the Basic Law states “A basic right may not in any case be violated in its essential
content.”
6
Bundesverfassungsgericht [BVerfG] Feb. 15, 2006, 1 BvR 357/05, available at http://www.
bverfg.de/entscheidungen/rs20060215_1bvr035705.html (in German).
7
Luftsicherheitsgesetz [Air Safety Act], Jan. 11, 2005, BGBl. I at 78.
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The complainants in the case challenged section 14(3). As frequent users of
civil aircraft, they established that it was sufficiently probable that they were
currently affected by the provision and could not reasonably be expected to
wait until they were actually victims of measures taken under section 14(3).8
1.2. Decision
There were two permissible grounds for constitutional challenge to the statute.
The first was whether the federation (Bund) had the power to enact section
14(3). The Federal Constitutional Court ruled that it did not; the federal government had no power to provide assistance involving military weapons to the
states (Länder) in a situation where only one state was affected. And for supraregional catastrophes the decision should be taken, according to the Constitution,
by the federal government, which the time pressures of such a situation would
probably not allow.9 This finding could have disposed of the case. However, the
impact of section 14(3) on the right to life was obviously of great importance, so
the Court went on to consider it.
The Court stated that a human life was the highest constitutional value,
and must be protected regardless of its prospective duration. Human beings
were not to be treated as mere objects of the state.10 Therefore, the Court held
that section 14(3) of the Air Safety Act was incompatible with articles 1(1) and
2(1) of the Basic Law insofar as it affected the innocent passengers and crew of
an aircraft. These people would be made objects not only of the hijacking but
also of an action taken by the state in the course of defending people on the
ground where the aircraft was aimed.11
In such cases, the Court observed, the facts could not always be properly
assessed. Communications between crew and cockpit, and between cockpit
and decision makers on the ground, were prone to error, and the effectiveness
of reconnaissance was limited. The aims of a hijacking might be obscure, the
situation might change quickly, and the time available for action probably
would be short (bearing in mind the relatively small area of German airspace
and the need to avoid disproportionate danger to other parties).12
In any event, said the Court, it was unthinkable, in light of article 1(1) of the
Basic Law, that the legislature lawfully could create a power to kill innocent
people.13 They could not be said to have consented to this by boarding the aircraft. Even if they were seemingly doomed, they were not deprived of their
8
BVerfG Feb. 15, 2006, 1 BvR 357/05 (paras. 79–83).
9
Id. at paras. 87–117.
10
Id. at paras. 119–121.
11
Id. at paras. 123, 124.
12
Id. at paras. 125–129.
13
Id. at para. 130.
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rights. It was not certain that they would be killed, and they could not be seen
simply as part of a crime weapon. Nor were they placed under a duty to sacrifice their lives in the interests of the state. Moreover, section 14(3) was not
directed explicitly at the attempted destruction of the community and state
order but, in theory, could be applied equally to other, nonpolitical hijackings
(for example, by extortionists or deranged individuals).14 Nor could this use of
section 14(3) be justified by the state’s duty to protect the persons against
whom the aircraft was aimed, according to the Court. These protective duties
(unlike the basic rights, which are claimed against state action) were undetermined in content, except in special cases. The state’s discretion in interpreting
these duties was confined to constitutional means, which did not extend to killing other innocent persons.15
On the other hand, action under section 14(3) could be constitutional if
directed against an unmanned aircraft, or one occupied only by hijackers. In such
an instance, the hijackers would not be treated as mere objects of state action but,
rather, were to be held responsible for the consequences of their own actions.
If the perpetrators did not intend to use the aircraft as a weapon, they could
respond to warnings; the potential for communication difficulties did not apply,
in the Court’s view. Remaining uncertainties related only to a course of events
provoked by the perpetrators and thus would lie within their responsibility.16
Under German constitutional law government action must be proportionate.
The doctrine of proportionality has entered European Union law17 and European
human rights law18 in a simplified form. In its German form it involves a variety
of tests: (a) the interests being protected must be important enough to justify an
encroachment on the basic right involved; (b) the measure must be appropriate
(geeignet) for attaining the objective; (c) the measure must be necessary (erforderlich) for the purpose, which would not be achievable by less severe means; (d)
the measure must not be excessive (unzumutbar), and it must be reasonable
(angemessen). This involves balancing the benefits and burdens of the measure
and deciding whether this balance could be improved by modifying the measure. This is known as proportionality in the narrow sense.19
The Court held that action under section 14(3) would be proportionate
when the aircraft contained hijackers but no hostages. First, the supreme
14
Id. at paras. 131–136.
15
Id. at paras. 137–139.
16
Id. at paras. 140–143.
17
See the application of it by the European Court of Justice in Case 11/70, Internationale
Handelsgesellschaft GmbH v Einfuhr und Vorratsstelle St, 1970 E.C.R. 1125.
See, e.g., the phrase “necessary in a democratic society” in articles 10 and 11 of the European
Convention on Human Rights.
18
19
See, e.g., BVerfG June 30, 2005, 2 BvR 1772/02.
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335
value of human life justified invasion of the perpetrators’ right to life. Second,
the appropriateness of section 14(3) could not in general be denied, because
its protective purpose might be promoted by the action in question. It might
be possible to establish that the aircraft contained only would-be hijackers,
and that shooting it down would have no adverse consequences for people
on the ground. Third, section 14(3) was necessary in such cases, because
there was no equally effective method that had a less severe impact on the
hijackers’ right to life. Fourth, action in this scenario was also proportionate
in the narrow sense, if the basic right infringement were balanced against
the legal interests being protected. The aircraft’s occupants would almost
certainly be killed, but they had created the need for intervention and could
avert it at any time. The victims against whom the aircraft was aimed could
not avert the attack. The risk that people on the ground would be killed when
an aircraft was shot down had to be considered. Still, the Court noted, there
would be unpopulated areas where that risk did not figure.20 Finally, the legislation also complied with the requirement in article 19(2) of the Basic Law
that the essential content of the basic right should remain untouched.21
1.3. Analysis of decision
Comparison with the United Kingdom provides an interesting and useful contrast
since the U.K. has neither a written constitution nor any statutory provision
regarding the relevant government powers. Under U.K. law the disposition of the
armed forces falls within the government’s inherent power under the royal prerogative and cannot be questioned in the courts.22 Although it was held in the
GCHQ case23 that the exercise (as well as the scope) of the royal prerogative could
be challenged in the courts in certain circumstances, exceptions to this principle
include the disposition of the armed forces.24 Unnamed defense sources have stated
that the prime minister would normally have to give personal authorization for an
aircraft to be shot down; however, other ministers (the deputy prime minister, the
home secretary, and the transport secretary) were also authorized to act if the
prime minister could not be reached.25 This arrangement is at the opposite extreme
to the German approach, and its significance will be considered later.
20
BVerfG Feb. 15, 2006, 1 BvR 357/05 (paras. 144–153).
21
Id. at para. 154.
22
China Navigation Co Ltd v A-G [1932] 2 K.B. 197 (in Crown’s discretion whether to protect
ships against piracy, and on what terms); Chandler v DPP [1964] A.C. 763 (irrefutable presumption that Crown used airfield in interests of state); Crown Proceedings Act 1947, s 11 (Crown’s
prerogative in relation to defense of realm preserved).
23
Council of Civil Service Unions v Minister of State for Civil Service (Government Communications
Headquarters [GCHQ]) [1985] AC 374.
24
GCHQ, per Lord Roskill, at 418.
25
Fighter Jets Scramble over Airline Terror Alert, THE TIMES, LONDON, Dec. 28, 2006.
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Government intervention in terrorist cases commonly raises the high probability of a loss of innocent life, albeit not with the inevitability that ordinarily
attends an aircraft hijacking that is also a suicide mission. The German Federal
Constitutional Court had been faced earlier with a terrorist kidnapping coupled
with a demand for release of prisoners but had refused to tie the government’s
hands as to what action it must take to preserve the kidnap victim’s life.26
There seem to be two strands of reasoning in the instant decision insofar as it
relates to innocent people. The first is purely one of principle. The state should
not take the lives of innocent people. No arguments about expediency or preventing an even greater loss of life can apply. If lives are to be taken, then let it be
done entirely by terrorists. Nothing—not even a dire threat to the lives of other
innocent victims—can justify the state killing blameless citizens, however hopeless their plight or long or short their prospective lives appear to be. This strand
is implicit in the application of articles 2(2) and 1(1) of the Basic Law.
Although this reasoning seems dispositive, the decision goes on to raise the
second strand of reasoning that is based on practical considerations: (a) there are
communication difficulties that will make it difficult to tell what is happening; (b)
the aims of the hijackers may not be clear, and the situation may change; (c) the
time for action is ordinarily very short; and (d) innocent passengers have no duty
to sacrifice their lives in the interests of the state, as section 14(3) of the Air Safety
Act is not exclusively about actions seeking destruction of the community or
state order, since it is not confined to politically motivated hijackings.
But let us say, for sake of argument, that communications are perfect, the
time for action sufficient, and the hijackers’ intentions clear and obviously
involve destruction of the community or state order. The mere possibility of a
change in circumstances could not render direct action by armed force unconstitutional, because it does not have this effect when the aircraft has no innocent occupants. Still, the practical arguments seem immaterial, because the
decision appears to apply the principled approach in any case;27 in fact, it is not
clear why practical arguments are included.
Commentators have differed on the fundamental implications of this decision. Oliver Lepsius28 claims that the Court applied article 1(1) of the Basic Law
separately from article 2 (2), and its interpretation that human beings should
26
BVerfG Feb. 15, 2006, BVerfGE 46, 160 (Schleyer).
“… [T]he deliberate killing under a statutory power of innocent people who, like the crew and
passengers on a hijacked aircraft, are in a hopeless situation … is simply unimaginable where Art.
1(1) of the Basic Law applies…”: BVerfG Feb. 15, 2006, 1 BvR 357/05 (para. 130).
27
28
Oliver Lepsius, Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court
Strikes Down a Prominent Anti-terrorism Provision in the New Air Transport Security Act, 7 GERMAN L.J. 761
(2006). But see the comment on this by Manuel Ladiges, Comment, Oliver Lepsius’s Human Dignity and
the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism
Provision in the New Air-Transport Security Act, 8 GERMAN L.J. 307 (2007).
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not be treated as mere objects is associated with an earlier era. Wolf Schenke
rejects this formula,29 maintaining that it amounts to an endorsement of the
Enlightenment philosophy of Immanuel Kant in a society that is supposed to be
pluralist. Kai Möller comments that the formula has been criticized for its lack of
substance and guidance.30 He also believes that the Court tried to rely on formal
doctrine in order to appear to be taking a principled approach but failed because
it did not address moral issues.31 The federal defense minister has argued that,
even absent statutory provisions, the armed forces could rely on the concepts of
defense of self or of others and of a “justifying emergency” under, respectively,
sections 32 and 34 of the Criminal Code, and the idea of emergency outside the
code.32 Schenke counters that to apply such a concept to government action
would infringe such constitutional principles as the prohibition of excessive
action, the requirement of certainty, and the allocation of competencies. He sees
no room for extrastatutory power in a modern constitutional state.33 However,
as Möller points out, the Court goes on to say in paragraph 130 that it was not
considering how the shooting down of aircraft would be treated in criminal law,
and this comment may have considerable practical significance.34
The question remains as to whether the killing of innocent people is always
forbidden, even when the state needs protection against dangers to its existence. Contrary to the instant decision, Schenke thinks that it is not, since the
state is the guarantor of the basic rights of the citizen,35 although he does not
explain how this can be reconciled with paragraph 130 of the decision.36
In Germany, then (in contrast to the U.K.), there are not only written constitutional rules about government competencies and individual rights, as well
as statutory rules about the powers of government, there is also a detailed court
29
Wolf-Rüdiger Schenke, Die Verfassungswidrigkeit des § 14 III LuftSiG [The Unconstitutionality of
Section 14 (3) of the Air Safety Act] 59 NEUE JURISTISCHE WOCHENSCHRIFT 736–739 (2006).
30
Kai Möller, On Treating Persons as Ends: The German Aviation Security Act, Human Dignity and the
German Federal Constitutional Court 51 PUB. L. 457, 463 (2006).
31
Id. at 465, 466.
32
FRANKFURTER ALLGEMEINE ZEITUNG, Feb. 18, 2006; Strafgesetzbuch [StGB] [Penal Code] Nov. 13,
1998, Bundesgesetzblatt I [BGBl. I] [Federal Law Gazette] 3322, §§ 32, 34.
33
Schenke, supra note 29, at 739.
34
Möller, supra note 30, at 462. As to the implications of this issue in criminal law (as opposed to
constitutional law) in Germany, the U.K., and other jurisdictions, see Michael Bohlander, In
Extremis—Hijacked Airplanes, Collateral Damage and the Limits of Criminal Law, 2006 CRIM. L REV.
579; and Michael Bohlander, Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked
Airplanes, 70 J. CRIM. L. 147 (2006). Bohlander is very critical of the German constitutional court
decision.
35
Schenke, supra note 29, at 738.
36
See BVerfG Feb. 15, 2006, 1 BvR 357/05 (para. 130).
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decision before the event—which would be impossible in the U.K.—applying the
constitutional rules and partly invalidating the statutory ones. The absence of
constitutional and statutory regulation in the U.K. is unsatisfactory; however,
it could be argued that a decision of the kind made by the German Federal
Constitutional Court has the disadvantage of making the government’s reaction to a terrorist attack too predictable.
2. The computer data case and the right to free
development of the personality
2.1. Facts
State legislatures in Germany have passed a variety of laws authorizing the
collection of computer data concerning individuals, with a view to comparing
it with other data in order to identify potential danger to the state or people.37
The instant case38 concerned section 31 of the Police Act for the State of
North Rhine Westphalia (Polizeigesetz des Landes Nordrhein-Westfalen).39 This
provision allowed the police to demand the personal data relating to certain
groups from the files of various authorities with a view to automated comparison with other databases. This use of data was to be permitted to the extent that
it was necessary to forestall a present danger to the survival or security of the
federation or a state or to the person, life, or freedom of an individual (para. 1).
It was limited to data needed for a specific case and not subject to professional
confidentiality or official secrecy (para. 2). The data were to be destroyed if the
purpose of collection was attained or proved unattainable (para. 3). The measure could be ordered by the judge of the local Amtsgericht (para. 4).
In October 2001, the Düsseldorf Amtsgericht ordered a computer data analysis that required the authorities responsible for the registration of residents
and foreigners and educational institutions to provide information about men
between certain ages. A collection of over five million records, narrowed down
by data comparison, eventually yielded only eight persons who were subject to
further measures; no criminal proceedings (for support of a terrorist organization, for example) were initiated against any of these.40
2.2. Decision
Ruling on a complaint by a Moroccan Muslim studying at the University of
Duisburg,41 the Federal Constitutional Court decided that the Amtsgericht had
37
Such as, for example, records of issuance of pilots’ licenses.
38
BVerfG Apr. 4, 2006, 1 BvR 518/02, available at www.bverfg.de/entscheidungen/rs20060404
(in German).
39
Amended in 2003 (inter alia) to remove the requirement of present danger.
40
BVerfG Apr. 4, 2006, 1 BvR 518/02 (paras. 11–33).
41
Id. at para. 34.
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infringed his basic right to control information about himself under article
2(1), in combination with article 1(1), of the Basic Law. Section 31(1) of the
Police Act complied with the Constitution in form and substance, but it had
been interpreted in a way that violated the basic right.42
The Court stressed that the right of individuals to control when and to what
extent personal facts about their lives were revealed—in particular, the collection, storage, use, and reproduction of data that was, or could be, individualized—was at issue. As data could be combined to identify suspicious characteristics,
it was not necessary to determine the extent to which each individual datum
was protected.43
2.3. The statutory provision
The Court found that section 31(1) facilitated invasion of the basic right, and the
Amtsgericht order was just such an invasion. Obtaining these data could be an
invasion even when they were retained only in order to narrow down the results.
The question was whether, taking into account the public agency’s purpose, its
interest in the data was intensified in such a way as to constitute an invasion.
The Court found this to be so when, after the initial comparison, the data were
subjected to further measures, especially further comparisons. Thus, sending,
storage, and comparison of personal data amounted to an infringement of basic
rights, at least for the approximately 11,000 people whose details had been
selected for inclusion in a file of possible “sleeper” terrorists.44 Nevertheless, the
Court held that limits on the basic right could be imposed where justified by
overriding general interests, if there was a statutory basis that complied with the
principle of proportionality and the requirement of clarity of norms.
Applying its standard proportionality analysis,45 the Court found that section 31(1) was proportionate. First, prevention of danger to the public or individual interests was a legitimate goal. Second, the method of computer-based
data analysis was appropriate, although far wider in scope than was needed.
Third, the intrusion was necessary for the legislative purpose and could not
have been achieved by less drastic means.46 Fourth, in the narrow sense, the
statutory power was also proportionate, since the seriousness of the intrusion
was not out of proportion to the seriousness of the grounds justifying it. The
statute should specify a threshold for intervention, which it did, namely, a concrete danger for the legal interest threatened.
This fourth issue accounts for about two-thirds of the Court’s reasoning.
The important points are as follows.
42
Id. at paras. 66, 67, and 154.
43
Id. at paras. 73–79.
44
Id. at paras. 80, 81.
45
See text following note 19.
46
BVerfG Apr. 4, 2006, 1 BvR 518/02 (paras. 82–89).
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2.4. Application of proportionality in narrow sense
The Court held that, even when the information collected was of marginal significance to the personality, the criteria developed for assessing invasions of the
secrecy of telecommunications47 and the inviolability of the home48 were relevant, because the authority conferred was broad and the data could be crossreferenced. A key factor was the extent to which expectations of confidentiality
were violated, especially where a basic right was implicated, such as the freedom from discrimination on the basis of racial or ethnic origin or religious or
philosophical convictions (article 3(3) of the Basic Law). The data in this case
extended to religion, citizenship, family status, and subjects studied by
students.49
As the only limits on data collection by the state were those set out in section
31(2) of the Police Act and the principle of proportionality, the Court saw a risk
that the ban on aggregating data (except for statistical purposes) would be circumvented.50 What was done came close to building personality profiles, which
was unconstitutional.51 The Court found that the persons affected were subject
to investigation, suspicion, stigmatization, and discrimination, or might reasonably fear that they would be. It held that the more the selection was based
on constitutionally relevant factors (being of certain nationalities and of
Muslim faith), the greater the stigma would be.52 An additional defect was that
under section 31(5) only people against whom further measures were taken
had to be informed of the data collection, and this only after the data analysis
was finished. The requirement could be waived if informing them would jeopardize the purpose of further use of the data, or if a criminal investigation were
commenced.53
In the instant case, some 32,000 people were targeted, and this was not
based on their conduct or connection to some danger or to suspicious persons.
Traditionally, searches would have been directed only at known groups of
criminals and based on unusual behavior, such as paying electricity bills in
cash (as with Red Army Faction terrorists).54 The Court held that the state
could and should take effective action against terrorist activities but only by
constitutional means and subject to principles of general application.55 The
47
Art. 10 (1) of the Basic Law.
48
Art. 13(1) of the Basic Law.
49
BVerfG Apr. 4, 2006, 1 BvR 518/02 (paras. 90–102).
50
BVerfG Dec. 15, 1983, BVerfGE 65, 1, 42 (Völkszählung [Census]).
51
BVerfG Apr. 4, 2006, 1 BvR 518/02 (paras. 103–106).
52
Id. at paras. 107–112.
53
Id. at paras. 113–115.
54
Id. at paras. 116–124.
55
Id. at paras. 126–130.
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Court further observed that personality-related investigations are sometimes
unconstitutional in all instances, as is true of surveillance and analysis of
telecommunications that are not in themselves suspicious. This applied equally,
according to the Court, to computer-based data analyses that indiscriminately
invade the rights of a large number of people without being grounded in
suspicion. The transfer, assembly, and comparison of such data represented
further discrete intrusions undertaken for the specific purpose of investigating
persons.56
The Court concluded that the rights invasions in the instant case were sufficiently grave that the legislature could prescribe them only if a concrete danger
were present. Absent a basis for suspicion, the requirements of proportionality
were not met.57 The legislature could adjust the balance between freedom and
security but not in any fundamental sense. Factors in this balancing exercise
would include both the likelihood that the legal interest the measure aimed to
protect would be violated and the likelihood that the rights-infringing measure
would successfully protect that interest. For a serious infringement, the rationale must be firmly grounded in fact.58
The Court explained that, in the past, when it had accepted measures for
investigating people in advance of a concrete danger, it had assessed the proportionality of a basic rights intrusion, in part, on the ground of how germane
the persons affected were to the threat to the public interest. But here intrusion
was used simply to identify suspects, not to advance the investigation of suspects already identified or to strengthen existing suspicion. This posed a constitutional deficit that had to be made up in another way, or there would no
checks on state power.59
Section 31 relied on the traditional constitutional limitation on action against
those who have done nothing to disturb the peace—namely, the criterion of
present danger, meaning that harm had already begun or was imminent, with
a probability verging on certainty.60 If held to this standard, computer-based
data analyses, in most cases, would come too late. Accordingly, the Court held,
the appropriate standard was concrete danger—that is, sufficient probability
that the interests in question would be violated within the foreseeable future.
This could be a prolonged period, provided the probability was adduced from
facts. That is, there must be grounds for believing there were preparations for
terrorist attacks—or persons ready to commit such acts—in the foreseeable
56
Id. at paras. 125, 131 and 132.
57
Id. at paras. 133, 134.
58
Id. at paras. 135–137.
59
Id. at paras. 138–140.
60
See, e.g., § 2 no. 1(b) of the Lower Saxony Public Security and Order Act (Niedersächsisches
Gesetz über die öffentliche Sicherheit und Ordnung), where present danger is defined in this way
for the purpose of the act.
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future in Germany or elsewhere. The general state of threat that had existed virtually ever since the 9/11 attacks did not satisfy that standard, the Court
stated.61
The Court also held that concrete danger was needed to fulfill the requirements of constitutional certainty and clarity for an invasion of basic rights. If
understood as described, section 31 satisfied these requirements. The legislature had identified the purpose for which the data was to be collected in a manner that was precise and specific to the area of activity; the authorities receiving
the information and their sphere of concern were also clearly ascertainable.
Furthermore, the required certainty was provided with regard to data of a kind
not specifically listed in section 31 by the purpose of the norm and the purpose
behind the data collection. The Court warned, however, that if the reference
point for computer-based data analysis were simply, for example, the general
danger of terrorism, the powers this conferred on the police would be too
open-ended.62
2.5. The decision of the Amtsgericht
Thus far the Court’s decision was unanimous; however, the next part of its
decision was reached by a majority of 6 to 2.63 According to the majority, the
decision of the Amtsgericht was unconstitutional because it was based on an
overly broad interpretation of the concept of present danger. At the least, there
must be a concrete danger, and the degree of probability of a legal-interest violation must be assessed in the light not only of the magnitude of possible harm
but also of the seriousness of the intrusion and its potential value to the state.64
The U.S. attack on Afghanistan, the threat of revenge attacks on U.S. ambassadors, the forty-two people in North Rhine Westphalia allegedly involved in
the network of Osama Bin Laden, and the naming of possible targets in North
Rhine Westphalia did not, in themselves, constitute a set of sufficiently concrete facts to indicate the likelihood that any terrorist sleepers who were preparing attacks could be found by a computer-based data analysis.65
2.6. Minority opinion
Judge Evelyn Haas delivered a minority opinion, agreeing that section 31 was
constitutional, but for other reasons. She considered the intrusion into the rights
of the few people whose data were not immediately destroyed to be of lesser
gravity.66 Haas felt that the majority arguments were partly contradictory. For
61
BVerfG Apr. 4, 2006, 1 BvR 518/02 (paras. 141–147).
62
Id. at paras. 148–153.
63
Id. at para. 166.
64
Id. at paras. 154–158.
65
Id. at paras. 159–162.
66
Id. at paras. 167–169.
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example, they linked the gravity of the infringement to its intimidating effect yet
saw the gravity increased by the fact that some of the persons affected knew
nothing about the intrusion. She commented that people were not normally
told about search measures that yielded no results.67
The decisive factor, in her view, was that only data that had been revealed
by the persons affected could be recorded and compared. The actual attributes
being analyzed were evident to everyone—characteristics such as gender,
place of residence, parenthood, and the nature of one’s academic studies.68
Haas commented that this also applied to religion, including that of Muslims,
who usually professed their religion openly and could do so, according to constitutional principles, without disadvantage. The prohibition of religious discrimination under article 3(3) of the Basic Law made religion no more
important or sensitive than gender or language. Nor did the protection of the
home afforded by article 13(1) make place of residence a sensitive issue.
Religion and place of residence, as a rule, were apparent to the public. Because
it was not conducted publicly, the computer-based data analysis could create
no stigma attached to religious adherence. Moreover, people could appreciate
that religion was an objective factor in tracing religious terrorists, just as gender would be an objective factor in searching for a female criminal.69 In addition, Haas saw the large numbers involved as advantageous, as they might
tend to make everyone anonymous in practice despite registration by name.70
Apart from these factors, according to Haas, when the state simply selected
data that it had already obtained and analyzed and then evaluated them, it
was promoting everyone’s freedom. People must accept such relatively trivial
intrusions to avoid the far more substantial intimidation effect arising from
worldwide terrorism. Additionally, their behavior would not be influenced by
data comparison of which they were unaware. Unlike telecommunications
surveillance, computer-based data analysis did not repeatedly obtain new
information relating to intimate communications.71
Present danger, she further remarked, would not, in and of itself, be the
right criterion for authorizing computer-based data analysis, given the amount
of time such analysis requires (twenty months in the instant case). But section
31(1), which required present danger, was constitutional if interpreted from a
standpoint of inverse proportionality. The greater the harm feared the smaller
need be the probability and the less certain the timing of the danger coming to
fruition in order for the police to act, as when, for example, they act preventively in response to the risk of certain crimes. A computer-based data analysis
67
Id. at para. 169.
68
Id. at para. 170.
69
Id. at para. 171.
70
Id. at para. 172.
71
Id. at paras. 173–177.
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was intended to establish whether the persons affected have a close relationship
to the threat or to the potential perpetrators, so it was not appropriate to require
a close relationship at the outset.72
Two of the perpetrators of the 9/11 attacks lived in North Rhine Westphalia.
Germany had accepted certain obligations in relation to military counterattacks and, as a member of NATO, was required to contribute to measures
against terrorism within the framework of collective self-defense. There was,
therefore, a sufficient factual basis for finding a situation of danger.
The legislature, if it wished, could redetermine and redefine the intervention
threshold, according to Haas. Furthermore, the need for preventive measures
in advance of concrete dangers was recognized in other areas of law. Examples
included investigating environmental dangers in soil protection law,73 and the
screening of air passengers,74 irrespective of specific suspicion, which commonly was felt to be far more burdensome than data comparison. Haas said
that to insist on the traditional police-law concept of concrete danger before
risks could be investigated left the state and the community largely defenseless,
and she called for “judicial self-restraint.”75
2.7. Analysis of decision
This decision goes beyond existing concepts of personality protection. The
European Court of Human Rights, thus far, has not applied article 8 of the
European Convention on Human Rights in a manner that classifies as private
the type of information at issue here. The majority of the German Federal
Constitutional Court found it unnecessary to determine the extent to which
each datum was protected, leading Haas to remark that the majority seemed
not to be convinced of their individual arguments. Winfried Bausback76 points
out that the majority saw no invasion of the basic rights of those people whose
data were deleted immediately but, nonetheless, included these people in the
proportionality assessment.
This decision suggests that data acceptable to record in one way become
unacceptable for recording in another. This may arise as the result of such factors as: (a) the possibility of cross-referencing the data to identify individuals;
(b) the public agency’s intensified interest in the data; (c) expectations of
72
Id. at paras. 178–180.
73
Bundes-Bodenschutzgesetz [BBodSchG] [Federal Soil Protection Act], Mar. 17, 1998 BGBl.
§9(2), sentence 2.
74
Luftverkehrsgesetz [LuftVG] [Air Traffic Act] Jan. 14, 1981, BGBl. I 61, § 29(c).
BVerfG Apr. 4, 2006, 1 BvR 518/02 (paras. 182, 183). The English expression “judicial selfrestraint” is used in the opinion.
75
76
Winfried Bausback, Fesseln für die wehrhaft Demokratie? [Fetters for the Fortified Democracy?],
59 NEUE JURISTISCHE WOCHENSCHRIFT 1922–1924 (2006). See BVerfG Apr. 4, 2006, 1 BvR 518/02
(paras. 74–76, 123).
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confidentiality of the data; (d) aggregating data in a manner tantamount to
banned personality profiling; (e) the number of persons affected; (f) the link
with other basic rights; (g) stigmatization or fear of it; and (h) the lack, in most
cases, of an obligation to inform the persons affected.
A case against computer-based data analysis can be constructed from the
first four factors, (a) to (d); however, this would depend on whether confidentiality were at issue, or whether unacceptable aggregation occurred in the particular case. Confidentiality should depend on whether both the individual and
the holder of the data could and should, respectively, have a reasonable expectation that the data will be confidential. Notwithstanding the opinion of Haas,
religion might be a confidential matter to some individuals. It is, however, hard
to see why, under (e), the number of individuals involved increases the gravity
of the intrusion, rather than decreasing it, as Haas suggests, by creating a
greater degree of anonymity. Haas also points to the inconsistency between
the last two factors, (g) and (h).
Factor (f), the link with other basic rights, raises a difficult issue: Should the
balance be tipped in favor of a breach of basic right A by an aspect of the matter
that has a tenuous connection with basic right B, but is not a breach of that
right? An analogy may be made with article 14 of the European Convention on
Human Rights, which prohibits discrimination in relation to convention rights
and freedoms. The courts must determine what connection with these rights
and freedoms must exist for a breach of article 14 to occur. In Petrovic v. Austria,77
for instance, the European Court of Human Rights held that refusal of parental
leave allowance to a father was not a failure to respect family life in breach of
article 8, because that article imposed no positive obligations on the state. But
because the allowance necessarily affected the way in which family life was
organized, it came “within the scope of” article 8,78 and article 14 thus applied
(although it was not breached, as the refusal to grant parental leave allowance
did not exceed the state’s margin of appreciation).79 However, in R (Erskine) v.
Lambeth LBC,80 the English High Court held that a difference in the rights of
municipal and private tenants in securing improvements to their housing was
directed at protecting and promoting public health and improving the housing
stock, and not at protecting and promoting the rights of individuals in relation
to their homes. The link to article 14 was thus too tenuous for it to be invoked.
The majority in the computer data case considered that the intrusion was
rendered more egregious by the fact that some of the factors selected for analysis
77
(2001) 33 Eur. Ct. H.R. 14.
78
Id. at 319.
79
This is a concept developed by the European Court of Human Rights by which the Court allows
a certain degree of discretion to states in their implementation of European human rights law even
though it may not approve of the decisions they make.
80
[2003] EWHC 2479.
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(such as religion and origin) were factors with respect to which article 3(3) of
the Basic Law forbids discrimination; and, in addition, that place of residence
was a factor related to inviolability of the home under article 13(1). But Haas
considered these links to be tenuous and irrelevant. There is a cogent argument
here. To say that fundamental rights create a penumbra around them—an area
where the right does not apply but may still have some effect—such that an
overlap with the penumbra around another right may result in a breach, can
create uncertainty. It may even trivialize the rights, by allowing their application in circumstances where they are only marginally relevant.
It is important to consider what limits should be imposed on the state’s handling of the vast amount of personal computerized data that has become available to it in recent years. To take the U.K. as an example again, the Data
Protection Act 1998 controls the processing81 of such data and applies to certain information held by public authorities (section 1). Some data are “sensitive personal data,” a category that includes racial or ethnic origin and religious
belief (section 2). Under the act’s first data protection principle,82 data must be
processed fairly and lawfully. Although, normally, they can be processed only
if the person who is the subject of the data consents, there are exemptions—the
exercise of any functions of the Crown, a minister of the Crown, or a government department, for example.83 Under the second data principle,84 personal
data may be obtained only for specified lawful purposes and must not be processed in a manner incompatible with such purposes. There are also some categories of exempt data, including the safeguarding of national security (section
28). In any case, since the British government has announced its intention of
allowing increased data sharing among public authorities,85 it seems unlikely
that there will be any legal obstacle in the U.K. to computer-based data analyses such as were at issue in the present German case. Such an outcome might
be mitigated or qualified if some limit is imposed on the basis of the principle of
privacy under article 8 of the European Convention on Human Rights.
The analogy drawn by the majority of the Court with secrecy of telecommunications is,86 as Haas argues, flawed. The scale of the operation, however, is a
significant factor, here, not because it increases somehow the gravity of the
invasion of the basic right, but because there should be a limit to the number of
81
This includes the obtaining, recording, and holding of the data and the carrying out of any operation in respect of it.
82
Data Protection Act, 1998, sched. 1, part 1, para. 1.
83
Id., sched. 2, para. 5 (c); and sched. 3, para 7(c) in relation to sensitive personal data.
84
Id., sched. 1, part 1, para. 2.
85
Information-sharing vision statement available at http://www.foi.gov.uk/sharing/informationsharing.pdf.
86
BVerfG Apr. 4, 2006, 1 BvR 518/02 (para 95).
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individuals who, having done nothing to generate suspicion, are kept under surveillance by the modern democratic state. This could be based on the constitutional
principle of the need to protect minority groups, for example, ethnic minorities.
This principle is part of the liberal democratic order (which political parties, under
article 21(2) of the German Basic Law, must not seek to harm or eliminate); it is
implicit in the provision that Germany is a democratic state (article 20).87
3. Conclusion
Where the balance point between liberty and security should lie cannot be
answered in a general way. Essentially, it is a political issue and, for this reason,
pragmatic and national factors are involved. The ethnic origin and beliefs of a
country’s population, the current relationships between groups that constitute it,
and the country’s history all have a part to play. German history, here, is probably
very important, although neither decision refers to it explicitly. Secretly gathering
computerized information about Muslims, with a view to identifying a small
number of extremists who may pose a terror threat, is a far cry from requiring Jews
to wear the Star of David in public, just as shooting down a hijacked aircraft carrying innocent people is hardly on a par with the Nazi wholesale contempt for human
life.88 Nevertheless, there is a distinct sensitivity in Germany regarding measures
of these kinds, and this may have influenced the Federal Constitutional Court.
In the computer data case, more recent history seems relevant. The East
German state functioned—as compared with Western democracies—at a relatively high level of preemptive intervention prior to the commission of crimes
and with a relatively low incidence of punishment after their detection. These
policies were reversed after reunification, and the Court’s majority may have
been reluctant to endorse an arrangement with similarities to the old order.89
On the other hand, the constitutional order set up by the Basic Law has been
described as a militant (streitbar) or fortified (wehrhaft) democracy in the sense
that, unlike the Weimar Republic, it contains elements that are intended to act
as a defense against forces that would destroy it. These include the powers
under the Basic Law for the Federal Constitutional Court to ban unconstitutional parties (article 21), for the government to ban other unconstitutional
associations (article 9(2)), and for the forfeiture of certain basic rights if they
87
See, e.g., BVerfGE 70, 324, 363.
Compare the attitude of certain governments—for example, in South America—to shooting
down drug traffickers’ planes See, e.g., Larry Rohter, Brazil Carries the War on Drugs to the Air, N.Y.
TIMES, Jul. 25, 2004, at http://query.nytimes.com/gst/fullpage.html?res=9B02EFD6173DF936A
15754C0A9629C8B63. For a recent example in Africa, see G. Bissau ‘to Shoot Drug Planes’, Aug.
31, 2007, at http://news.bbc.co.uk/1/hi/world/africa/6972468.stm.
88
89
For another example of another East European country turning its back on its communist past by
invoking the concept of human dignity, see CATHERINE DUPRÉ, IMPORTING THE LAW IN POST-COMMUNIST
TRADITIONS: THE HUNGARIAN CONSTITUTIONAL COURT AND THE RIGHT TO HUMAN DIGNITY 129–156 (Hart 2003).
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are exercised in attacking the basic liberal democratic order (article 18). Both
decisions place checks on the government’s power to act against threats to the
constitutional order, and both represent broad understandings of the basic
rights they protect. It is significant that Bausback’s article on the computer
data case was entitled “Fetters for the fortified democracy?”90
90
Bausback, supra note 76.