17 January 1998: Add NY Times report
16 January 1998
Date: Fri, 16 Jan 1998 11:23:47 +0100 To: John Dewey Discussion List <JDEWEY-L@VM.SC.EDU> From: Howard Callaway <hcallawa@GOOFY.ZDV.UNI-MAINZ.DE> Subject: Snooper-state? Snooper-State? -------------- Dewey-l, I was struck by an article in this week's _Die Zeit_, (Nr. 4, 16 January 1998) on the theme of civil liberties. The article criticizes the current plan of the German government to amend the constitution or "Basic Law" to allow the police to listen in on conversations within private homes among criminals or suspected criminals. The article, "Will the Fight against Organized Crime end up in a Surveillance-state ["snooper-state"]?" was written by Marion Graefin Doenhoff, who has long played a central role in the newspaper, and Doenhoff rejects the government's plan in no uncertain terms. She says: It is not only without sufficient justification, it is a serious error to attempt to make good on past carelessness by damaging the constitution. Thank God there is still the possibility and the hope that the Federal Council of the States [Bundesrat] where a three-fourths majority is required [to amend the constitution], will pre- vent this questionable amputation of the con- situation. The amendment is supported by the governing coalition, and so it is pretty sure to pass the lower house [Bundestag]. But the majority of the German state governments are controlled by the opposition, and Doenhoff sees some hope that the opposition will turn on the plan. Although the proposal has been widely mentioned in the media, I have not see a great deal of discussion. It is really surprising to me that the Free Democrats, Greens, Social Democrats and even many in the Christian Democrats would be willing to support the plan. Such an amendment signals, in my impres- sion, the danger of an effective alliance between the establishment of the social-welfare state and the authori- tarian right. A danger which sociologist Ralf Darendorf recently warned against. Doenhoff does not believe that alternative methods of dealing with organized crime have been exhausted. It is not clear to me how this plan is to work. Would the planting of surveillance devices in someone's home require a court order, as with a police search? Doenhoff comments as follows: It is a remarkable idea that in a country where human rights are protected, the police will break into private homes and put listening devices in place. Some twenty years ago, I was able to help Robert Havemann, a renown freedom fighter, to re- move a listening device from his apartment which had been planted by agents. But that was in the communistic DDR and not in a state based on law and human rights. Beyond that listening devices have been greatly perfected in more recent years, though one might reasonably assume that profes- sional criminals would know how to protect them- selves against them. But ordinary citizens, who might get caught up in these proposed police activities, presumably won't know how to protect themselves. Doenhoff has serious doubts as to whether they will be sufficiently protected against such intrusions. Certainly, the planting of bugs is supposed to take place only under particular circumstances, and it is supposed to be strictly controlled by the government. But can there be any effective guarantee in this area? Can we rely on the plan- ned obligation to silence on the part of investi- gators? Who will see to it that the recorded con- versations will not be misused? How and when will the recordings be destroyed? And will those who have had their conversations recorded ever learn of what has been done? While I have heard of some discussions in parliament to the effect that conversations of certain sorts will not be open to this proposed snooping, I has seen very little concern with the possible misuse of information. So, the plan is that regulations will forbid snooping on conversations with priests in confession, or those between lawyers and client, and perhaps some others. But this is nowhere near the level of current protection, where according to the German "Basic Law," article 13 guarantees the "immunity from invasion of the home" as a matter of the "worth of the human being." In a country with as much centralization of economic and political power as the Federal Republic, one might argue, this existing guarantee has a special importance. There is a history here of serious public concern about the need for protection of information regarding private citizens. Is human worth a matter to be settled in the cabinet, or in private talks among the political parties, on the urging of the Minister for Internal Affairs? Dealing with the question in this way seems to me high-handed and elitist in the worst sense. Broader public discussions would seem to be impera- tive concerning such basic questions of civil rights. I hope that Doenhoff is right in suggesting problems ahead in the Bundesrat. The complete article is available on-line (in German): http://www3.zeit.de/bda/int/zeit/aktuell/artikel/lauschen.txt.19980116.html Howard H.G. Callaway Seminar for Philosophy University of Mainz
The New York Times
BONN, Germany -- Dismantling a cardinal principle of postwar Germany's protection of individual privacy, the Bonn Parliament took a decisive step Friday toward allowing police to bug private homes for the first time since the Nazi era.
Previously, authorities were able to tap telephones in exceptional circumstances relating to crime and terrorism, and to use listening devices to monitor emergencies like hostage-taking, Justice Ministry officials said. But the constitution guaranteed the inviolability of private homes from all forms of eavesdropping, including long-range or concealed electronic devices.
In Friday's vote, the lower house of Parliament, or Bundestag, voted narrowly to secure the two-thirds majority necessary for changing the constitution, ostensibly to give police greater powers to combat organized crime and money laundering.
The lower house generates legislation, which the upper house can delay and sometimes veto. It is not expected to do so in this case because details of the constitutional amendment were worked out in a compromise between the dominant Christian Democrats and the opposition Social Democrats.
The move drew an outcry from civil rights campaigners and from journalists, doctors and lawyers fearful that conversations with news sources, patients or clients could now be overheard. Only priests, defense lawyers meeting accused criminals and legislators will be protected by law from eavesdropping.
Wiretapping is legal in many countries, including the United States where federal and state authorities must get court approval, which is almost never denied. The vast majority of the cases in the United States involve narcotics investigations.
Germany has shied away from adopting similar measures for many years because of its concerns not only about its Nazi past but also because the former East Germany was notorious for such practices.
The German journalists' association said it was considering an appeal to the highest constitutional court against the new law, which still has to be approved by the upper house of Parliament, made up of representatives of Germany's 16 federal states.
"This is about nothing less than the constitution and the elementary right of every individual to a tiny core of privacy," said a commentary Friday in the liberal newspaper Frankfurter Rundschau. To secure evidence, the newspaper said, police and prosecutors would be permitted to eavesdrop on "private homes, hotel rooms, company offices, lawyers' rooms, medical practices, labor rooms, drug advice centers and editorial offices."
"Even if the new law leads to the downfall of this drug dealer or that extortionist, this attack on the constitution is not justified," the newspaper said.
And Karsten Vilmar, head of the leading physicians' professional association, declared: "Medical practices and hospitals are places where people find protection. An intrusion into this area raises questions about medical confidentiality and thus the basic rights of the patients."
The concerns reflect Germany's postwar obsession with privacy and information-protection laws as an antidote to the wholesale intrusions of the Gestapo, Hitler's secret police.
By contrast, modern Germany is latticed with almost as many rules to safeguard personal privacy as there are laws to regulate individual behavior: while one set of rules, for instance, forbids telephones that allow people to listen in on extensions, another decrees when people may mow the lawn or wash their cars.
Parliament's 452-184 vote on the new measures followed negotiations between Chancellor Helmut Kohl's Christian Democrats and other political groups traditionally more protective of civil rights. Manfred Such, a member of the Free Democrats, the junior coalition partner, said Friday's vote spelled a Black Friday for Germany's constitutional processes.
But Interior Minister Manfred Kanther, a Christian Democrat, said the new measures would "be used only rarely to fight crime."
In recent years, Germany has been increasingly worried by the influence of organized crime groups, starting with the Italian mafia and Turkish and Kurdish narcotics networks, then spreading after the Cold War to criminal syndicates from Eastern Europe and Russia.
In a statement seeking to justify the bill, Jorg van Essen, a leading Free Democrat, said the new measures would be used only when there were strong suspicions of criminal activity and when there was no other way of gathering evidence.
He said eavesdropping would have to be approved by a panel of three judges and that judges would also rule on the admissibility in court hearings of testimony garnered by such methods. Church confessionals are also to be exempted, Justice Ministry officials said.