I was embarrassingly proven wrong, and I’m sitting here loving every second of it. As you remember, I was on stage in Berlin a few years ago telling people I felt we had lost the war defending privacy. It now appears we may be able to hold on to a little bit of ground, at least temporarily. I sincerely apologize, for it seems as if I have indeed given up just a bit too early.
As luck would have it, I think the widely publicized notion of hackers being this straightforward about the state of affairs scared the living daylights out of people and may have actually had a significant strategic effect. And for the record I still disagree with some of the people approaching me afterwards that claimed that one could simply never say such things, whether they were true or not.
Many of you know I’m quite the skeptic when it comes to the notion of privacy. Who can expect such a thing while all our physical movements, payments as well all our spoken and written thoughts are being tracked? I’m not sure where and how I am supposed to have privacy between mandatory data-retention, license plate recognition, public transit RFID cards, biometric passports, electronic files on the development of every child until the age of 35 (!), the wholesale erosion of medical secrecy, massive growth in camera observation and a system of laws that give government broad access to just about any piece of information held on all its citizens?
But even a long-term privacy-pessimist as myself now has to recognize that in this rising sea of privacy-intrusions, the citizens of one country seem to be raising and maintaining at least some of their defenses. And while that metaphor clearly shows my national origin, it is unfortunately not my own country where people are successfully defending themselves.
The German federal constitutional court, the Bundesverfassungsgericht, has nullified a state law that would have allowed broad introduction of government sanctioned spyware. And, even more importantly, in its ruling (here’s a shorter press release) the court has created a much broader fundamental constitutional protection. They have acknowledged the concept that our lives now extend into the technology we use and stated that our lives in this new space are just as worthy of constitutional protection as our lives in any of the other places where we live. In Germany, the concept of a constitutionally protected ‘most inner private sphere’ now clearly extends to our homes in the digital world.
The future of a proposed federal equivalent to this now-nullified state law is uncertain, and the wording of this new concept also sheds strong doubts on whether the proposed data-rentention laws will be ruled constitutional. (A ruling on this is still outstanding.)
It would of course have been even nicer if the Germans had actually managed to elect a government that didn’t attempt to trample their most basic rights to begin with. But then constitutions are there as a safety-net for precisely this eventuality. They are written because the framers realized that when it comes to governments, shit (such as in the form of oppressive laws) sometimes happens.
So the people of Germany seem to be successfully defending themselves against their government. What’s wrong with the rest of the world? There have been plenty efforts in many other countries to defend the notion of privacy, but the Germans have simply been provided with better and sharper tools for defending themselves. Their sharpest tool by far is this federal constitutional court. Without it, I fear Germany would have long been in the same sorry state as my own country. I hope all Germans realize that the judges and support staff that make up this court are the one single thing that stands between today’s Germany and a police state.
So what does this teach us if we don’t live in Germany? It shows that one needs a constitution that defines which core values are important and a legal system that interprets what these values mean with regard to new developments. Also, the legal system needs to allow for common laws to be challenged based on the constitution. It’s probably very hard to get such a strong constitution out of the blue. It takes some very serious accidents in your history to show what happens if the wrong people get to power.
Take my country, The Netherlands, for example. It has a constitution that, in practice, is mostly meaningless. Yes, we have a right to communications secrecy. But our constitution has a habit of saying things along the lines of “government shall not … unless warranted by law”. Most of you will recognize that the whole purpose of a constitution should not be to have some nice hollow phrases to point to, but to regulate what ordinary laws can and cannot say. Coupled with the legal impossibility of challenging laws as being unconstitutional (!), the Dutch have clearly taken a wrong turn way back in the past. Most simply put, the framers of the dutch legal system have assumed that shit would not happen. That parliament and government could never really want truly wrong things.
I congratulate the German constitutional court on taking a determined step back from the abyss. I sincerely hope it also takes the logical next step and completely and utterly destroys data retention such that it is so dead that it will never rise from its much spitted on grave. But after all the much-deserved partying, the Germans need to realize that they’re not done. They still need to eradicate the root cause of the problem. After all: when your very last defense - the constitutional court - has to save you from oppression like this, you damn well better hurry and replace the politicians that got you into this mess in the first place. Either you get rid of them, or they start the tediously slow process of eroding the power of the court. (Which accidentally is a simplification of what happened to constitutional protection in the US over the past decades.)
If the Germans don’t act to cherish and preserve this new right, it will be mostly meaningless. After all, until the broader population understands and defends what has been given to them, it is nothing but a ruling written by some older judges, acting against the elected government in an attempt to uphold higher principles. This new constitutional principle needs to be cemented into the legal practice and into the minds of the people.
Given how incredibly alone Germany seems to be in defending these principles, the defense of German freedom has long become important to non-Germans as well. At this point in time, I think it makes much more sense for me to defend the real and defended notion of privacy in Germany than fight the eternal uphill battle of trying to re-introduce this profoundly lost concept in The Netherlands. I will start donating money and helping out accordingly, and I call on anyone reading this to do the same. I’ve donated to Foebud e.V., but Stiftung Bridge and Arbeitskreis Vorratsdatenspeicherung appear to be equally responsible and active recipients. Check out their websites and use the comments if you feel I’ve left out worthy causes.
rop.gonggri.jp, Amsterdam, 01. März 2008