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Arguments of Data Retention advocates critically discussed:

Contents

Telecommunications traffic data is indispensable in the fight against terrorism and organized crime

Wrong. Even without exhaustive logs on every use of phones, cell phones, e-mail, and the Internet, sufficient traffic data is available for fighting crime:

  • Certain traffic data is stored for billing purposes in any case - up to six months in Germany.
  • In addition, law enforcement agencies can obtain a court warrant to have a suspect's traffic data recorded.
  • The terrorist bombings of Madrid in 2004 were successfully investigated by using traffic data stored for business purposes. Data retention was not needed.
  • Until the decision to introduce data retention based on an EU directive adopted in 2006, only very few countries demanded the retention of telecommunications data. In none of those countries was the retention regime as comprehensive as stipulated by the directive. Law enforcement agencies all over the world have always been able to do their duty without needing exhaustive logs of telecommunications data.

In a study, the German Federal Criminal Police Office mentions 381 criminal cases in which law enforcement agencies were hampered by a lack of telecommunications connection data – compared to the more than 6 million criminal offences committed every year in Germany this represents a marginal share of 0.01 percent. Furthermore, these cases were concerned with the investigation of crimes committed in the past rather than the prevention of crime. Furthermore, only two of these 381 cases had a link to terrorism, despite repeated claims that terrorism is one reason for retaining telecommunications data. According to the German Federal Criminal Police Office, additional traffic data is mostly not needed for combating terrorism or organized crime but for tracking down the exchange of child pornography on the Internet or for investigating fraud. However, the rate of crimes solved is the highest for these offences even without data retention. Moreover, prevention is much more effective in the case of fraud than subsequent prosecution. For example, raising Internet users' awareness can prevent them from becoming credulous victims of identity theft (e.g. because of "phishing mails").

The retention of telecommunications data is ineffective against terrorism and organized crime:

  • Serious criminals shield themselves from detection by employing circumvention strategies (e.g. alternating use of unregistered prepaid SIM cards for mobile phones) or by switching to other communication channels (e.g. postal mail, personal meetings).
  • The president of the European Confederation of Police, Heinz Kiefer, warned in 2005 that "it remains easy for criminals to avoid detection through fairly simple means, for example mobile phone cards can be purchased from foreign providers and frequently switched. The result would be that a vast effort is made with little more effect on criminals and terrorists than to slightly irritate them."
  • Klaus Jansen, chairman of the confederation of German criminal police officers ("Bund Deutscher Kriminalbeamter") is complaining even today: "As word has spread that telephone conversations can be wiretapped relatively easy, suspects nowadays rarely talk openly on the phone." If telecommunications data retention is put into effect, criminals adapt to it fairly quickly.

Telecommunications data retention does not prevent other kinds of crime either. Ireland, which introduced data retention for a period of three years in 2002 could not report a reduction in crime.

Truly useful measures for supporting the work of security agencies would be other measures such as facilitated access to telecommunication connection data of other countries. Security agencies complain that requests for obtaining connection data from other EU member countries are complied with slowly while data from non-EU member countries cannot be obtained at all. This is a much greater obstacle to their work than a lack of domestic traffic data. About 80% of investigations in the areas of terrorism and organized crime involve international connections.

If but one serious crime can be prevented, data retention is justified

Wrong. Free and open communications is more important to our society than attempting to prevent every single crime.

First and foremost it is very unlikely that a crime can be prevented with the help of telecommunications connection data; at best crimes committed in the past can be resolved.

Even in the exceptional case that a crime could be prevented, the retention of telecommunications data for the entire population is not justified. If the prevention of one offence justified every means, we would have to give up our constitutional rights, including the ban on torture and the protection of human dignity. After all, any such basic and civil right could stand in the way of fighting crime. However, these basic rights serve the purpose of supporting a free society and a vibrant democracy, thus promoting the good of the entire population. These values are more important to us than an attempt to prevent every single crime.

Those who want to prevent all crime would, as a matter of consequence, also need to demand a ban on road traffic, smoking and liquor. All of these measures could help reduce the number of fatalities. Everybody who opposes patronizing citizens and therefore accepts traffic deaths and cancer-related deaths cannot credibly advocate the prevention of every single "crime".

Setting the wrong priorities

Constantly demanding more security distracts our attention from the failures and the wrong priorities of politicians. While politicians try to employ a total surveillance and control over their citizens in order to punish each and every criminal, they consciously accept that thousands of people die every year from the consequences of smoking, drinking and traffic accidents, for example. For the benefit of certain industries (tobacco industry, breweries, automobile industry), politicians remain inactive where they easily could and should prevent the illness and deaths of countless people. Even in fighting unemployment and poverty - the citizens' primary concerns over the last years - acting politicians have failed repeatedly, as statistics show.

In comparison to these problems, the effects of crime are disproportionately small:

  • According to Eurostat, less than 0.002% of all Europeans die as victims of crime, including terrorist attacks, per year.
  • According to the World Health Organisation, 92% of the premature loss of healthy lifetime in Western Europe is caused by illness, 2% by traffic accidents, 1% by falls, 1.7% by suicide and only 0.2% by violence and crime. The major health risks are different from crime: high blood pressure, tobacco, alcohol, cholesterol, obesity, malnutrition and lack of exercise are the main risks. In addition, being affected by risks such as poverty, unemployment or natural disasters is more likely than becoming a victim of crime.
  • If, for example, tobacco consumption were reduced by just 2%, the population would benefit more than from the prevention of all crime, including terrorism.

Those who keep demanding additional measures to fight crime therefore fail to address the actual problems citizens face every day. Crime rates have always remained roughly the same and have never fundamentally threatened our society.

Negative side effects

Those who focus on the gruesome crime at hand, ignore that the harmful effects of exhaustive record-keeping by far outweigh its benefit. Because of this, blanket record-keeping is unreasonable. Even the protection from crime does not warrant disproportional measures.

  • Retention of telecommunications data deters informants from passing important information on grievances to journalists by telephone, fax or the Internet. Informants are aware that their contact can be exposed using traffic data.
  • Those who seek counsel from a lawyer, a doctor or a help and information center (e.g. marriage counseling, counseling on addiction, crisis line) are aware that their contact points to their personal problems (e.g. under criminal investigation, suffering from illness, a marriage crisis or an addiction) which could lead to disadvantages when made public. For celebrities who are spied on by the sensational press, this is a particular danger.
  • Confidential negotiations over business contracts or mergers could be hampered because participants need to anticipate business crime. Competitors could access traffic data to "snatch away" orders or to block mergers.
  • Politicians could be blackmailed if their contacts to controversial people (e.g. lobbyists, industrialists, prostitutes) were traced.
  • The work of political activists (e.g. globalization critics, opponents of nuclear material transports) is hampered as they need to anticipate an - even retroactive - exposure of their activities by domestic intelligence agencies.

Overall uninhibited communications become largely impossible, particularly once the first case of data abuse is exposed. Eavesdropping scandals have already occurred in Greece and Italy. In the USA, connection data is commercially available for purchase. In Germany a significant abuse of telecommunications data occurred when Deutsche Telekom analyzed hundreds of thousands of records on the communications of its directors, its employees, and of journalists in an attempt to identify a leak within their company. It is but a matter of time before more cases of abuse of retained telecommunications data are exposed.

No communication content is being stored

In a strict sense, this is true by itself, however it is misleading as it is possible to reconstruct the communication content from traffic data in many cases.

Who someone is talking to often allows deducing what is being talked about. It is obvious why someone would call a marriage or drug counselor, a physician specialized in venereal diseases, an attorney specialized in law regarding tax offenses or a telephone sex number. In the case of politicians, contacts with lobbyists or prostitutes may be of interest.

When using the Internet, service providers often log requested content and search queries ("server logfiles") on a voluntary basis. Simply by combining these logs with traffic data (IP address) stored at an Internet service provider, the communications content can be meticulously reconstructed.

The danger exists that data retention will be extended to also cover communications content in the future. In Italy, for example, SMS text messages are already being stored. The argument that this information may be needed for law enforcement purposes could be used to justify its retention in the future.

Traffic data is already being retained today

This statement is false in such a generalized form.

Currently, German telephone service providers may only retain traffic data which determines their customers' bills (Section 97 Paragraph 3 German Telekommunikationsgesetz). Therefore cellphone location data (Who made calls where?) and e-mail traffic data (Who sent an e-mail to whom?) currently must not be stored. For flat-rate fees currently no traffic data must be retained at all as none of the data is relevant for billing.

Furthermore, a customer can demand monthly deletion of their traffic data stored for billing after the bill has been sent. To begin with, a customer may also request that called phone numbers are stored with the last three digits truncated. If a customer does not take advantage of his or her rights, this data is generally stored for 80 or 90 days and not for six months, as would be the case with mandatory data retention.

Therefore, by far not all available traffic data is retained and data is only stored for a shorter time period, compared to mandatory data retention.

Access to the stored data is subject to strict conditions (e.g. judicial order)

Wrong. Today connection data is already being retrieved several ten thousand times a year. The identities of telephone, mobile phone, email and internet users (stock data) are even retrieved several million times a year (3.4 million times in 2005 or 9.000 times per day). Data retention will cause another considerable leap in the number of retrievals. Given these facts, the argument that access to the stored data is only allowed under strict conditions cannot stand.

  • In Germany access to stored data is allowed in any case of a suspected "substantial" crime or a suspected crime that was "commited by means of telecommunications". In addition access is allowed to "avert considerable risks" and to "achieve the legal obligations" of intelligence services.
  • For this purpose access is granted for the public prosecutor's office, police and intelligence services, but also for foreign states like the USA in context of mutual legal assistance treaties. A judicial order is only necessary for the retrieval of data for criminal prosecution purposes, but even in this case the judge only verifies compliance with legal conditions. If the conditions are met he has to grant access.
  • For requests from foreign states no judicial order is required. What happens with the data abroad cannot be controlled.
  • Intelligence services are allowed to retrieve connection records without a judicial order.
  • Access to the identity (name, address, date of birth) of users of phone, mobile phone, e-mail and internet services will be given to all public authorities with an interest in such data (e.g. police, public prosecution, secret services, customs, agencies for the prevention of illicit employment). Even for petty offenses (e.g. illegal parking) access will be justified in an automated retrieval process. In none of these cases a judicial order will be necessary.
  • Even the film and music industry and other "copyright owners" will be allowed to request information about the identity of phone, mobile phone, e-mail and internet users, for example to prosecute the use of internet file sharing services. In this case a judicial order is mandatory, but the judge only verifies compliance with legal prerequisites. If the regulations are met he has to grant access.

In addition an investigation of phone tapping practice revealed that the requirement of "judicial orders" does not warrant efficient control: In many cases blank permissions were granted without a detailed examination of the filed documents and without denying requests in case of absent legal prerequisites (report on Heise.de). The requirement of "judicial orders" couldn't prevent the number of phone tapping actions from increasing for years - this increase is not due to an increase in the number of crimes but caused by weakening the legal prerequisites for surveillance actions. Furthermore privacy advocates continue to criticize that only the setup of surveillance actions is subject to judicial control, not their continuous execution. (report on Heise.de)

The current discussion about data collected by toll bridges (report on Heise.de) further illustrates the insecurity of legal boundaries for the use of retained data. Legal access restrictions that are put in place today can easily be watered down or removed by changes to legislation tomorrow. There are numerous examples for this mechanism. For example, access to bank data was originally granted to combat terrorism. Today, fiscal authorities, the social welfare office and many others have access to this data.

These aspects cast serious doubt on whether the permanent security and protection from abuse and access by non-governmental organizations of this data can be guaranteed. The circumvention of legal protective mechanisms (for example the appropriation of data from toll bridges),ambiguous legal clauses, human errors (for example lack of judicial control) and the advance of outsourcing of state duties to private companies do not indicate a diligent handling of mass-retained data.

Germany is obliged to implement the EU Directive on Data Retention

Wrong. The EU Directive on Data Retention need not be applied in German law in that it involves flagrant and grievous violations of legality and as such will be declared null and void by the European Court of Justice by the end of 2009 at the latest.

The EU Directive is contrary to law as a consequence of the fact that it lacks legal foundation and tramples on numerous basic rights. In June 2006 Ireland put in an official compliant about the directive. Earlier, the European Court had already decided in a different case that the EU has no authority to decide on measures involving improvement of "public safety or prosecution of offences". For that reason it declared the passing of flight passenger details to the USA inadmissible. Jurists exclude the idea that in the matter of data retention the Court could come to any other conclusion. Even Federal Justice Minister Zypries went as far as to concede, after hearing of the European Court's judgement in the flight passenger affair, that the EU Directive on Data Retention hung in the balance.

Until such time as the Court decides one way or another, Germany is in no way obliged to implement the directive. According to the European Court, a directive is ipso facto null when it is saddled with a defect that is so obvious and grievous that it cannot be reconciled with the Community's system of law. According to Germany's Federal Constitutional Court Berlin should not implement any directive in which the EU has overstepped the bounds of its authority.

That such conditions prevail in the matter of the Directive on Data Retention is, of course, disputed by the Federal Government at Berlin. If they had postponed application until after the decision of the European Court, Germany would have been threatened with the introduction of a procedure for treaty violation that, in point of fact, carries no financial penalties. Germany has already made use of this possibility in other cases, for example in that of the directive on tobacco advertising. At the present time there are seventeen EU directives that have never been implemented. A moratorium on the implementation of the data-retention directive would have been perfectly feasible, had the politicians here been so inclined.

The Directive was a necessary compromise, designed to forestall more invasive plans for Data Retention

Wrong. Germany could have prevented the decision for the EU Directive being taken, had the chief negotiator of the Federal Government refused to envisage data retention from the very start, as several resolutions of the Bundestag had demanded. Instead of that, Federal Justice Minister Zypries quite needlessly declared herself in favour of a six-month retention system, describing it as useful, and, against Bundestag guidelines, actively worked for an obligation to retain data for such a period of time.

Germany merely applies the minimum requirements when applying the EU Directive in the country

Even were that statement true, it could not alter the fact that systematic registration of telephone data so as to cover the behaviour of everyone in the country is grossly out of proportion and in no way to be reconciled with the concept of a free society. Here we have the registration of communications without good reason, and to argue that this is justified because it is limited in scope is like saying to somebody: "Don't worry, we won't kill you, just beat you to pulp!" And actually it is not even true that only the minimum requirements of the EU Directive are being followed. The truth is that the German law in many ways goes far beyond what the directive requires. In Germany internet proxy and anonymous access services are to be obliged to retain the data of their users, which makes them practically useless. That is something that the EU Directive does not lay down. In Germany the authorities will be allowed to access the data retained whenever there is suspicion that a "considerable" offence has been committed or an offence "carried out by means of telecommunications", but this access can also be permitted so as to "ward off considerable dangers" or for the purpose of collecting intelligence for the secret service. In Germany no one can obtain a telephone number without providing their name, address and date of birth (identification obligation). Those data can be accessed by a plethora of state authorities. Even providers of prepaid or free services (e.g. prepaid mobile phone cards) are required to collect such information. The EU Directive lays down no such compulsory identification. This right to access the identity of telephone, mobile phone, e-mail and internet users (including their names, addresses and dates of birth) applies to all authorities that would have any interest in the matter (for example, the police, state prosecution service, secret service, customs and excise and authorities investigating illegal immigration). Even the prosecution of petty offences, wrong parking for instance, will be enough to justify calling up such data as part of an automatised process. Even the film and music industries and other "copyright holders" will be able to demand information about the identity of those involved, to enable them to prosecute those up or downloading on internet exchange sites. But the EU Directive itself only prescribes access to data in the event of "serious crimes". In Germany the identity of telephone, mobile, e-mail and internet users (that is, the name, address and date of birth) is to be retained for as long as two years after the contract comes to an end. The EU Directive requires merely a six-month period. In Germany every despatch or receipt of e-mail requires that the IP address of the user be retained, and for every e-mail received likewise the address of the sender. There is not a word to be found about that in the EU-Directive. In Germany providers of telephone, mobile phone, e-mail and internet services cannot claim compensation from the State for having to provide and pay for such data-retention systems. This means that their cost will have to be passed on to the user in the form of increased charges. Services that have previously been free are thus threatened with closure. And yet the EU Directive does not oppose the concept of compensation in such cases. In Germany the obligation for providers to retain email and internet data has been introduced with effect from January 1, 2008. The EU Directive lays down that it should be introduced with effect from March 15, 2009.

Civil Liberties are not adversely affected by Data Retention

This statement made by Federal Minister Brigitte Zypries (SPD) in front of the Bundestag in 2006 is untrue. The weightiest accusation is that it violates the law protecting the intimacy of telephone communications. Without any suspicion of a crime having been committed, sensitive details pertaining to the private lives of 80 million citizens of the German Republic, about their social relationships (including business dealings), about where they go and the individual circumstances of their lives (e.g. contact with doctors, lawyers, psychiatrists and advice centres) are being amassed. In this way data retention undermines the intimate secrets of the legal, medical, psychiatric, advisory and other confidential professions and facilitates industrial espionage. It makes a mockery of the confidentiality of the journalist's sources and thus strikes at the very heart of the freedom of the press. Even the presumption of innocence is abolished, for a mountain of leads and evidence is now being stock-piled against every single citizen without there being the slightest whiff of suspicion that he or she has committed a crime. All that is in direct contradiction to the Founding Charter (Grundgesetz) of the German Federal Republic.


One can compare data retention with a postal system in which one need not even place the sender's name on the envelope. A "postal data-retention scheme" would mean that the State would arrange for the registration of details of all letters, that is, who sent whom a letter and when. A "data-retention scheme for conversations" would mean that state spies and informers would note down the name of anybody who spoke to anyone else and who that person was. Such illustrations make it clear that data retention schemes are worthy of the Stasi, but unworthy of a democracy based on the rule of law.

The data retention bill is in conformity with the constitution

Wrong. The introduction of data retention in Germany violates the fundamental constitutional rights of the citizens concerned as well as the associated decisions of the Federal Constitutional Court.

Dies gilt zum einen für das vom Bundesverfassungsgericht ausgesprochene "außerhalb statistischer Zwecke bestehende strikte Verbot der Sammlung personenbezogener Daten auf Vorrat".

Im dem Urteil des Bundesverfassungsgerichts vom 04.04.2006 heißt es weiter: "Selbst bei höchstem Gewicht der drohenden Rechtsgutbeeinträchtigung kann auf das Erfordernis einer hinreichenden Wahrscheinlichkeit nicht verzichtet werden." "Der Grundsatz der Verhältnismäßigkeit führt dazu, dass der Gesetzgeber intensive Grundrechtseingriffe erst von bestimmten Verdachts- oder Gefahrenstufen an vorsehen darf [...] Verzichtet der Gesetzgeber auf begrenzende Anforderungen an die Wahrscheinlichkeit des Gefahreneintritts sowie an die Nähe der Betroffenen zur abzuwehrenden Bedrohung und sieht er gleichwohl eine Befugnis zu Eingriffen von erheblichem Gewicht vor, genügt dies dem Verfassungsrecht nicht."

Eine Vorratsdatenspeicherung verzichtet auf jeden Verdachtsgrad und auf jede Nähe der Betroffenen zu den aufzuklärenden Straftaten, stellt gleichzeitig aber einen schwerwiegenden Grundrechtseingriff dar, weil sensible Daten über das Kommunikationsverhalten der gesamten Bevölkerung gesammelt werden. Dies ist mit dem Verfassungsrecht unvereinbar.

In einem Urteil des Bundesverfassungsgerichts vom 12.03.2003 heißt es: "Insofern genügt es verfassungsrechtlichen Anforderungen nicht, dass die Erfassung der Verbindungsdaten allgemein der Strafverfolgung dient. Vorausgesetzt sind vielmehr eine Straftat von erheblicher Bedeutung, ein konkreter Tatverdacht und eine hinreichend sichere Tatsachenbasis".

Mit diesen Vorgaben steht die beabsichtigte Vorratsdatenspeicherung im evidenten Widerspruch. Mit der Vorratsdatenspeicherung ordnet der Staat eine Erfassung und Vorhaltung von Verbindungsdaten an, die nur allgemein der Strafverfolgung dienen soll, aber keinen konkreten Tatverdacht und keinerlei Anhaltspunkte einer Straftat voraussetzt.

Schon 1967 hat das Bundesverwaltungsgericht entschieden: "Ausgangspunkt hat die Feststellung zu sein, daß nach dem Menschenbild des Grundgesetzes die Polizeibehörde nicht jedermann als potentiellen Rechtsbrecher betrachten und auch nicht jeden, der sich irgendwie verdächtig gemacht hat ('aufgefallen ist') oder bei der Polizei angezeigt worden ist, ohne weiteres 'erkennungsdienstlich behandeln' darf. Eine derart weitgehende Registrierung der Bürger aus dem Bestreben nach möglichst großer Effektivität der Polizeigewalt und Erleichterung der polizeilichen Überwachung der Bevölkerung widerspräche den Prinzipien des freiheitlichen Rechtsstaates."

Die Vorratsdatenspeicherung geht weit über die Aufnahme vom Lichtbildern und Fingerabdrücken im Rahmen einer erkennungsdienstlichen Behandlung hinaus. Sie betrifft sensible Daten über die Kommunikation der Menschen mit ihren nächsten Angehörigen sowie mit Beratungs- und Hilfsberufen, über die sozialen Beziehungen der Menschen zueinander, über ihre Internetnutzung und über ihr Bewegungsverhalten. Eine derart weitreichende Registrierung des Verhaltens aller 82 Mio. Menschen in Deutschland aus dem Bestreben nach möglichst großer Effektivität der Polizeigewalt und Erleichterung der Verfolgung von Straftaten widerspricht den Grundprinzipien des freiheitlichen Rechtsstaates.

Mit Beschluss vom 22.08.2006 hat das Bundesverfassungsgericht an den Gesetzgeber nochmals eine besondere Warnung gerichtet: "Das Bundesministerium der Justiz hat mitgeteilt, seit längerem an einer Gesamtregelung der strafprozessualen heimlichen Ermittlungsmaßnahmen zu arbeiten [...] Es stellt sich auch die Frage, ob und in welchem Umfang von einer neuerlichen Ausdehnung heimlicher Ermittlungsmethoden im Hinblick auf Grundrechtspositionen unbeteiligter Dritter Abstand zu nehmen ist." Die Vorratsdatenspeicherung stellt eine schwerwiegende Ausdehnung der heimlichen Telekommunikationsüberwachung dar und beschädigt Grundrechtspositionen unbeteiligter Dritter massiv.

Vor dem Hintergrund der klaren verfassungsgerichtlichen Rechtsprechung ist es ein vorsätzlicher Verfassungsbruch, eine Vorratsspeicherung von Telekommunikations-Verkehrsdaten gleichwohl zu beschließen.


"We need more surveillance to protect us from criminals/terrorists/sex offenders so we can live in safety."

Wrong. More surveillance does not lead to more security.


How safe our living environment is can be determined by taking a look at statistics measuring the frequency of violent crime. The assumption that increased surveillance leads to a decrease in the occurrence of violent crime is not empirically proven, nor have responsible politicians ever claimed that it does. In fact, there is no measurable connection between increased surveillance measures and the crime rate, whether over time in a particular country or in comparisons between different countries with different surveillance infrastructures. An American comparative study indicates that there is no measurable relationship between the amount of power granted to the criminal investigation services and the frequency of violent crime.


There is no doubt that in isolated cases surveillance measures can help solve a crime; the overall benefit, however, is negligible. WHO statistics have calculated the loss of healthy life time caused by premature death, illness and disability. According to those statistics, illnesses are responsible for the loss of 92% of Western Europeans' healthy life time. 2% of the loss is a result of traffic accidents, 1% of falls, 1,7% of suicide. Violence only reduces Western Europeans' healthy life time by around 0.2%. That means violent crime is about as dangerous as accidental poisoning, tooth decay, back pain or diarrhoea.

According to Eurostat, only about 0.002% of Europeans die each year as a result of violent crime, including terrorist attacks. The statistics show that you are several times more likely to die from an unhealthy lifestyle (that is, an unhealthy diet, sedentary lifestyle, tobacco, alcohol), a fall down the stairs or a traffic accident than you are to die by a violent crime. The greatest risks to our health are not crime but things like high blood pressure, tobacco use, excessive alcohol consumption, high cholesterol levels, obesity, an unhealthy diet, a sedentary lifestyle and so on. In fact, a reduction of tobacco use by only 2% would do more of a service to public health than the elimination of all violent crime. Additionally the risk of being negatively affected by facts of life like poverty, unemployment or natural disasters is much higher than the risk of falling victim to violent crime, too.


Despite all these various risks and dangers, life expectancy for Europeans has been constantly increasing over the past decades. In this context, criminal offences pose a serious threat to an individual's well-being, and the state ought to use appropriate means to combat and reduce the occurrence of crime. However, one has to put things into perspective, for the threat of falling victim to crime is only one risk among many, and not even the most serious one at that. Crime is a part of life that can never be completely eliminated, and the actual risk for the individual is so small that the reduction in quality of life caused by increased surveillance measures is not worth its dubious and unproven benefit, a slight reduction in the occurrence of criminal activity.

Apart from this, many forms of criminal behaviour have root-causes that cannot be fought by the police but have to be addressed in the broader context of societal organization.

"We need to employ all available means to prevent such dreadful crimes/terror attacks/child abuse/... in future."

Wrong. It serves our security when the state is not allowed to use every means at its disposal.


The state not only prosecutes criminals but also investigates those who are merely suspected of having committed crimes. Later those people often turn out to be innocent, or at least have to be released from custody because they cannot be proven guilty of any crime. The instruments available to the criminal prosecution authorities (e.g. surveillance of telecommunications data, personal surveillance, questioning of neighbours, preventive detention) are in many cases used against innocent people. Large amounts of data are amassed on ordinary citizens without any prior evidence of involvement in criminal activity. We thus observe a subtle shift away from the assumption of innocence and towards a scenario where everyone is a potential suspect who has to prove his innocence, instead of the state having to prove him guilty of some crime.


Anyone can become the victim of unjustified suspicion, and it is in all our interests to limit the means the state can use to act on such false suspicions. And the more data is available about individual citizens, the more such false accusations will arise because of the multitude of "suspicious connections" suggested by the plethora of data.


Certain methods (like torture) contradict basic human dignity, even that of the criminal. We have learned from our history that unrestricted pursuit of the "common good" and the "national interest" is not ultimately in our interest. The potentially negative consequences of other instruments used by the state (like arbitrary surveillance without prior indication that any crime has been committed by the person in question) are out of proportion with the slight increase in overall security they might achieve. Any beneficial effect of those measures is far outweighed by the stifling effect they will have on the free expression of critical opinions by the citizenry, the very thing that forms the foundation of a free and democratic society. Constructive participation of the citizenry in the democratic process is replaced by the silence engendered by fear of unjustified persecution.


In the long term constitutional limits to state power and respect for basic human rights serve to improve overall security, since excessive repression and control breed discontent and resistance among the population. Honouring basic human rights makes us safer, not more vulnerable. The Supreme Court of the State of Israel appropriately stated this in 1999: "Such is the destiny of a democratic society, for not every means available to its enemies is compatible with it. Even though a democracy often has to fight with one hand tied behind its back, it ultimately keeps the upper hand. The preservation of constitutional rights and the acknowledgement of individual liberties form an important part of the democratic understanding of security, and this ultimately increases their strength."

"Data Protection means protecting criminals. It is an obstacle to protecting the innocent."

Wrong. When we protect data we are protecting the Constitution, the Founding Charter of our Republic. It does serve to protect the innocent.

When the State doesn't collect knowledge about us unrestrictedly and isn't allowed to sieve through data searching for particular profiles, that in fact serves to protect us. The more the state knows about us, the more starting-points for investigation will be at its disposal and so the greater will be the danger that the state will come to suspect us unjustly. Moreover comprehensive collections of data offer an open invitation to misuse. In the past there have repeatedly been cases in which police officers have passed on police data to others in return for bribes or for private reasons. The mere fear of misunderstandings or abuse can itself narrow our freedom of decision. When we can act anonymously or know that our data will immediately be destroyed or at least not used for other goals, then we do not shrink back from sensitive activities, such as participating in demonstrations, collaborating with opposition groupings, asking for psychiatric help or taking part in sexual activity. That is why protecting our data ultimately protects our freedoms.

"We've got to do something about crime. We can't just fold our arms and give up."

Wrong. Politicians acting merely for the sake of action is quite pointless.

Nobody wants people to stand with folded arms where crime is concerned. But it is the security forces' job to act, not that of MPs. When spectacular crimes come into the limelight, that is essentially a wake-up call to the relevant authorities to work more intensively to hinder such cases in future. Politicians tend to react with demands for "improved" laws. For politicians new laws are of course a cheap and easy way of displaying to the public that they are "decisive" and "on the ball". But this kind of action for action's sake often leads to the passing of laws that bring the citizenry no measurable benefit. Whoever continually promises new laws and - inevitably - proves incapable of preventing crime, will lose the trust of the citizenry after a while and thus encourage disgust with politics. In the end he or she endangers the ability of our democracy to function.

"The state has a duty to protect its citizens. The citizenry have a right to security."

Wrong. The citizens cannot demand more from the State than that it should take appropriate measures to combat crime.

No "right to security" as such can exist, as no state can guarantee complete security against crime. Even police states with unlimited power (the GDR for instance) have not proved capable of eradicating crime. On the contrary, such states have seen a lot of corruption, arbitrariness and crimes committed by the State itself. A democratic state based on the rule of law should take proper action against criminals. But it deliberately sets itself limits and lays down restrictions so as to protect the innocent and preserve a free society. Precisely that is what forms the strength of its free and democratic character, observing the rule of law.

"I have nothing to hide."

Wrong. Everybody has got his or her private life, and that's no business of the State!

Those of you who like to claim you have nothing to hide ought to face up to questions like "Why do you bother to get dressed before leaving home?" or "Why close the toilet door?" Everybody has experiences which are no business of strangers and shouldn't get revealed to the public. Nobody can claim that they have never done anything wrong. Never dodged a fare? Never lied about your car in order to sell it? Never omitted things on your tax declaration? Never broken the speed limit? If the State just waits and collects data, sooner or later it will sniff out petty offences. And even if you're completely innocent, you can reap disadvantages from mass-surveillance and data-mining.

If anybody wants to spent all his time in a Big Brother container, then he's free to do so. But he shouldn't find it objectionable when other people like to keep their secrets.

By the way, states have their own secrets, too. They are called "state secrets". Members of Parliament fight against too much transparency in their own lives, for example, not wanting to disclose their own finances. State surveillance is kept hidden, too, to prevent it being discovered by those spied upon.

"Those who have nothing to hide don't have anything at all to fear."

Wrong. Time and time again innocent people find themselves in the cross-sights of the authorities.

Even innocent people ought to ask themselves: "Even if you have nothing to hide, could you convince the police or immigration officials that is so?" Even the innocent have increasingly to face police measures. Often mistaken suspicions are aroused by supposed risk-factors, (such as having the "wrong" religion, "wrong" nationality, "wrong" place of birth, "wrong" name, reading the "wrong" books or voicing the "wrong" opinions) or just an unlucky combination of circumstances can lead to repressive measures. The consequences may be interrogation of neighbours and colleagues, shadowing, police-searches of their home or even arrest. And those very measures may cause prejudice against them in their social surroundings and even destroy their means of existence. Unwarranted refusals to allow one to enter or leave a country, confiscation of property, forced repatriation as a result of confusion over names, even kidnappings by secret services and erroneous killings by police or "sky marshals" occur repeatedly. Cases of such things happening occur in Germany, too.

Surveillance and data-collection provide a flood of information into which discrepancies can be read and so give rise to suspicion. Then it is of no help at all that someone has "nothing to hide".

In point of fact, those who have "nothing to hide" ought not to be surveilled in the first place.

"Surveillance only serves the purpose of fighting serious crime."

Wrong. Misuse for other purposes occurs over and over again.

Cases such as the spying on journalists by the BND (Germany's CIA) remind us time and again that security laws are indeed abused. Apart from journalists, those critical of the government, such as anti-globalization activists, must face similar misuse, too. As these people are acting for the benefit of us all, their freedom should matter to us.

The German Federal Constitutional Court has warned: "Fear of surveillance and the danger that what one says or writes is being recorded and later combed through before being transfered to be further exploited by other authorities can in itself lead to self-censorship and other forms of reticence to communicate with others and to the emergence of more conformist modes of behaviour." The former President of the Constitutional Court, Frau Prof. Dr Limbach, has put it even more starkly. "A democratic political culture has its life-spring in the joy of expressing one's opinion and in the citizenry's degree of commitment. And both require fearlessness. This fearless quality will generally be lost, if the State decides to classify the citizens biometrically, sieve through data on the look-out for particular profiles and snoop on their movements and activities electronically."

Furthermore experience shows that restrictions on data usage become increasingly toothless with the passage of time. In more and more authorities cases turn up in which surveillance techniques and the data collected are found to be "productive". And in the end surveillance and requests for data are allowed in every case in which they could conceivably be of use.

"Surveillance is only a minor, hardly perceptible intervention."

Wrong. Surveillance can have dramatic consequences for the people concerned, and, at worst, it can ruin their lives.

Even if surveillance by itself does not hurt, its consequences can. If surveillance data arouse the suspicion of public authorities, this can lead to measures such as interrogation of neighbours and colleagues, shadowing, execution of a search warrant or arrest. Unjustified denial of requests to enter or leave a country, confiscation of property, rejection at the border due to a mistake in name and even abduction through intelligence agencies and erroneous killings through police or sky marshalls are not fiction, but reality.

"Surveillance makes people feel safer."

Wrong. Symbolic actions do not build confidence.

Even if some surveillance measures are popular in the short term, they do not ultimately strenghten the overall feeling of security. After all, the media will never tire of presenting us with new spectacular crimes. Politicking is also counterproductive, as fear of crime is usually fuelled in order to push through new laws. There are other, more effective means of increasing the overall sense of security: since the true extent of crime is usually overestimated, it would be reasonable to inform people about the real risk. Structural measures (such as better street lighting) and improved contact to neighbours and police can also help to counteract fear of crime.

"Data protection advocates are paranoid, their horror scenarios are exaggerated."

Wrong. Errors and misuse are a daily occurrence. A few examples can be found here, however, the cases that have become public are probably only the tip of the iceberg.

"We are already being surveilled in everything we do anyway."

Wrong. If total surveillance were already reality, there would be no need for politicians to bring forth more and more new laws in order to expand it.

According to Privacy International, the international organisation for data protection, privacy in Germany is still the best protected in the world and (compared to other countries) has been restricted the least over the past few years. We must defend this protection and reconquer our already lost liberties.

"We can't change it anyway."

Wrong. There are many opportunities to oppose this security ideology. Some of which are found here.

Actions taken by a single person may not result in big changes. If, however, many people get involved, this cannot be ignored by politics in the long run. Politicians are very sensitive to the mood of their voters. A list of civil rights organisations, where you can commit yourself, is found here.

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