What US Federal Law Guarantees Privacy

Let us share our secrets!

Digitization and an escalating surveillance mentality are eroding privacy at breakneck speed. An outmoded plea for the defense of dwindling value.

«Everyone has the right to respect for their private and family life, their home and their correspondence, mail and telecommunications. Everyone has the right to protection against misuse of their personal data. " That’s how it is in the Federal Constitution, in a nutshell. The protection of privacy is a fundamental right and basis of a democratic, free state. The right to be left alone, as the American lawyers Samuel Warren and Louis D. Brandeis called it in a pioneering essay in 1890, applies to the right of citizens to be left alone by others and especially by the state. To have secrets and to decide for yourself whether or not to divulge personal information. The right to privacy is indispensable for the exercise of all other freedoms, for the relationship of trust between citizens and the state and generally for an autonomous life. A state that cannot guarantee it fails in the core area, and if it does not respect privacy itself, it bears authoritarian traits. Totalitarian systems have always tried to control the public and private spheres completely. In democratic states, on the other hand, privacy is “inviolable”, as the constitution says.

Digital glass for a long time

Paper is patient, including that of the constitution. Digitization has led to the fact that people leave behind a steadily growing trace of personal data in almost every communication, every action, every movement, every decision that can be used by anyone for any purpose. Control over their own data has long since slipped away from each individual, not just since the millions of data abuse on Facebook by the campaign company Cambridge Analytica to influence elections was exposed. Even completely legally, private data is constantly and imperceptibly collected, profiles are created, linked and used. Few of them are aware that their purchase, communication or movement profiles are being observed, some do not care, most should not be welcome. It is hypocritical to argue that users have voluntarily consented to their privacy being disclosed by downloading or ticking the terms of use. Rather, there is a kind of coercion, because renouncing the use of digital technologies would be tantamount to leaving social life, so that every individual is forced to surrender part of their privacy. In fact, all that remains is to say goodbye to the digital world or accept encroachments into the private sphere.

For the economy, data is an increasingly important fuel for innovations, investment decisions and competition. Naturally, it is interested in the lowest possible restrictions, as the ongoing revision of the Data Protection Act shows. But in addition to increasing consumer awareness of how to handle their own data, there is a need for more transparency towards those affected, companies must be obliged to provide information about what they do with the data, and a code of business practice for handling data. The more digitization penetrates all areas of society, the more legislation is needed that takes into account the widespread unease. It must strike a balance between economic needs for data and the protection of privacy.

Security versus freedom

However, privacy is not only being threatened by digitization, but also by the state itself. The drivers here are fear and the state's mandate to protect its citizens. In the course of the growing threat of terrorism and the fight against crime, the state has procured more and more means of surveillance. Not only are train stations, airports and public places equipped with cameras. The state also listens and peeks deeper into the private sphere. The new Intelligence Service Act (NDG) has been in effect since last September, expanding the instruments of preventive surveillance and information gathering. And since the beginning of March, the Federal Act on the Monitoring of Post and Telecommunications Traffic (Büpf) has been in force, which gives investigators more options for monitoring data traffic in order to solve serious crimes.

There is nothing wrong with that. No sane person can demand that terrorists be granted or that criminals be allowed to escape because the means are not exhausted. But the fundamental rights are still affected. Parliament has struggled to bring more effective surveillance and the protection of privacy into an acceptable relationship until a solution of the conflicting objectives that was able to reach a majority was finally achieved. When it comes to the fight against terrorism and the investigation of serious crimes, so the highest legal interests such as the protection of life and limb are at stake, then encroachments on privacy must be accepted. Especially since the hurdles for eavesdropping and reading attacks are set high and it was also promised that they should take place in a cautious and targeted manner and not hit masses of innocent citizens as in the state security affair in 1989. The expansion of the control and preventive state shows, however, that in the shifting the balance between the delicate tension between security and freedom. The private sphere is no longer sacrosanct, but rather more and more vulnerable.

Authoritarianism

With the NDG and Büpf, the principle of protected privacy was still upheld to a certain extent, and Parliament also stuck to it when defending domestic banking secrecy against the automatic exchange of information. In another area, however, it put aside all inhibitions: social insurance companies may in future observe insured persons if they suspect abuse, make video and sound recordings and use tracking devices. The detectives are allowed to spy on target persons in generally accessible places, but also to spy on the private area if it can be seen from outside. The supervision does not have to be ordered by a judge, a member of the management board of the insurance company is sufficient; judicial approval is only required if GPS trackers are attached to cars.

Despite alarming warnings from well-known constitutional lawyers, the parliament let the proportionality go in this law: In principle, a large group of people may be observed - social welfare recipients, disability pensioners, unemployed, AHV recipients with helpless compensation, accident and health insured - so potentially everyone. Insurers' powers have been expanded beyond those of the police to prosecute, although fraudulent insurance claims are a misdemeanor and not a crime. In contrast to criminal prosecution, observation of the insured person is not an “ultima ratio”, but rather permissible if the investigations would otherwise be “disproportionately difficult”. And finally, with surveillance in the social area, a new reason was created for undermining the protection of privacy. While the interventions were previously only permitted to combat serious criminal offenses, they are now permitted for the first time when it comes to wrongly withdrawn funds. If this is enough as a reason, soon nothing will be safe from observation. With the same argument, the state could justify observing the private circumstances of all recipients of contributions, support funds and direct payments - and also spy on all taxpayers who might withhold money from the state.

The argument could also be heard that the surveillance is not directed against everyone, but only against fraudsters; whoever is not guilty of anything has nothing to fear. This is a particularly perfidious argument, because it speaks the authoritarian attitude that under the title of control and law enforcement everything is allowed and there is no longer any area where the citizen is left alone. Authorities have always justified any surveillance of their subjects, however far-reaching, because they fundamentally distrust their citizens and cannot tolerate any secrets. Anyone who protests against this faces the suspicion that he is belittling abuse, wanting to protect fraudsters or even being one himself. It is only a matter of maintaining the conditions. The fundamental right to the protection of privacy is threatened by technological developments and by a large number of state and private control claims. But it is too important for social coexistence and for the relationship of trust between citizens and the state and may only be touched if the highest interests of all are to be protected or a serious, immediate danger has to be averted.

"Anyone who is not guilty of anything has nothing to fear." - With this perfidious argument, the authoritarian states have always justified the surveillance of their subjects.