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Privacy International & EPIC has qualified Germany’s privacy law as one of the strictest in Europe (Rotenberg et al. 2006). Germany was assessed to have significant privacy protections and safeguards for almost every researched aspect (including constitutional protection, statutory protection, privacy enforcement, communications interception, data sharing, visual surveillance, and communication’s data retention). In 2007s Privacy international and EPIC’s survey, Germany’s privacy qualification dropped significantly to a “some safeguards but weakened protections” partly due to the implementation of the Data Retention Directive. Protections towards surveil- lance of medical, financial and movement were still assessed to be significant (Privacy International et al. 2007).

10.1.1 Right to privacy

There is no general right to privacy in the German Basic Law (Grundgesetz). Instead, it is linked to the concept of human dignity and personality. The legal basis for the principle right to privacy is in the German Basic Law articles 1 (dignity) and 2 (per- sonality). Human dignity is absolute (unantastbar). It must be respected and pro- tected.36 _{Article 2 of the Basic Law guarantees that “[e]very person has the right to}

free development of his personality, insofar as he does not injure the rights of oth-

36

German Basic Law (Grundgesetz) reads:

Art 1

(1) Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Ge- walt.

(2) Das Deutsche Volk bekennt sich darum zu unverletzlichen und unveräußerlichen Menschenrechten als Grundla- ge jeder menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt.

(3) Die nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittel- bar geltendes Recht.

Art 2

(1) Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt.

ers” (translation by Whitman 2004). It protects the right to act as one pleases and en- sures that one can freely develop his personality without having to consider the ex- pectations of society (Jacoby 2006, p.22; Whitman 2004). Thus, the protection of privacy in the German tradition can be regarded as an aspect of the protection of one’s ‘personality’. Whitman (2004) argues that this implies the ability to exercise free will, and the defining characteristic of creatures with free will was that they were un- predictably individual. Each individual should be able to fully realize his potential as an individual: to give full expression to his peculiar capacities and powers.

In the Census Act Case (Volkszählung 1983) the Federal Constitutional Court stated that under Articles 1 and 2 of the Grundgesetz an individual has “the authority to de- cide for himself, on the basis of the idea of self-determination, when and within what limits facts about his personal life shall be disclosed” (Jacoby 2005, p.1090). The Court noted that if a person is unable to oversee what of his personal information is available in specific contexts, it could impact his decisional freedom (Jacoby 2006, p.33). Technological developments provided, the Court was concerned about the possibility that government officials could use automatic data processing to construct a ‘complete personality profile’ (Jacoby 2005, p.1090). In 2005, in addressing the permissibility of GPS surveillance, the Court reaffirms that the degree of privacy pro- tection depends on the nature of the information, which the technology discloses. When the GPS data are combined with other surveillance techniques in ways that yield too comprehensively the construction of a personality profile (umfassenden Per-

sonlichkeitsprofils), the use of a tracking device may violate a suspects’ constitutional

right to ‘Informational self-determination’ (Ross 2005, p.1810).

Although the Court determined that the use of GPS as a surveillance tool did not violate Articles 1 and 2 of the Basic Law, the Court also made clear that other emerg- ing surveillance technologies could be constitutionally impermissible (Jacoby 2005, p.1092). The Court also stated that the right to informational self-determination was not unlimited and that certain restrictions on an individual’s right to informational self-determination for reasons of compelling public interest would be acceptable (Jacoby 2005, p.1091).

10.1.2 Specific aspects of privacy in legislation

Article 10 and 13 of the Basic Law address specific rights to privacy. Article 10 con- cerns the privacy of post and telecommunications and article 13 the privacy of the home.

Article 13: inviolability of the home

Under German law, the right to privacy must especially be respected in homes. In the

Lauschangriff Case (2004), the Court ruled that acoustic surveillance of the home by

the state was constitutionally prohibited. The home was considered the most private place where all citizens were entitled to a sphere of intimacy in which to conduct pri- vate conversations without fear of government intrusion: the ‘last refuge’ for the de-

Article 10: inviolability of post and telecommunications

Article 10 of the Grundgesetz (Basic Law) protects the post and telecommunication from government intrusions, among others. It reads (translation ECtHR in Weber):

1. Secrecy of mail, post and telecommunications shall be inviolable. 2. Restrictions may be ordered only pursuant to a statute. Where such

restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives.

The inviolability of telecommunications privacy seeks to avoid that the exchange of opinions and information by means of telecommunications equipment ceases altogether or is modified in its form and content. This is because communication partners do not expect government to interfere with their communication, or to take note of the circumstances or the content of their communication (Federal Constitutional Court 1999 at 162).

The protection of fundamental rights (i.c. telecommunications) is not only restricted to shielding the content of the communication. The Federal Constitutional Court has ruled that the protection of fundamental rights also covers the circumstances of communication, particularly including: (1) information about whether, when and how often telecommunications traffic has taken place or has been attempted; (2) information about the individuals between whom telecommunications traffic has taken place or has been attempted; and (3) information about which subscriber lines have been used. The state cannot claim to be allowed to take note of the circumstances of acts of communication. The use of the medium of communication is supposed to remain confidential in all respects (Federal Constitutional Court 1999 at 161).

Article 10.2 of the Basic Law permits restrictions of telecommunications privacy. The Federal Constitutional Court (1999 at 219) ruled that because individuals are integrated in the community and depend on the community, they must tolerate restrictions of their fundamental rights if they are justified by prevailing public interests. Such restrictions require a legal regulation that serves a legitimate aim in the public interest and respects the principle of proportionality (Federal Constitutional Court 1999 at 164).

Thus, privacy in Germany can be considered as the right to self-determination, a lim- ited access to self including limited access to one’s personal data. In addition, tele- communications, both the content and the circumstances (e.g., traffic and location data), are protected by the German constitution. Restrictions of privacy are permitted if these are justified by prevailing public interests.