Author(s): Paul M. Schwartz
Abstract: The publication in 2003 of a long-awaited empirical study of telecommunications surveillance in Germany has opened a window into existing law and practices in that country. Under the sponsorship of the Federal Department of Justice, three researchers at the Max Planck Institute for Foreign and International Criminal Law in Freiburg (“MPI”) carried out a detailed examination of relevant German and international developments. The MPI Study of German and international developments in telecommunications surveillance has both weaknesses and strengths. Its weaknesses concern the MPI researchers’ reliance on spotty international statistics to reach conclusions about relative amounts of surveillance activity in different countries. More successfully, the MPI researchers trace the similarities and dissimilarities in the regulation of telecommunications surveillance in different countries. To a large extent, this survey indicates a convergence among a core of shared legal approaches: a requirement of judicial approval of surveillance orders; an emergency exception to this requirement; and a use of telecommunications surveillance only as a last resort when other means of law enforcement will not reveal necessary information. Regarding its analysis of Germany, the MPI Study reveals the heavy emphasis of law enforcement agencies on surveillance of mobile telephones. This emphasis is all the more striking due to a relative lack of German law enforcement activity concerning surveillance of e-mail or traditional telephones. The MPI Study proved unable to account for these differences; it also neglected to explore the roots and significance of the disparate rate of surveillance in different German states. Finally, the MPI researchers did explore perhaps the most complex question of all in this area: can one empirically measure the results of telecommunications surveillance?
Keywords: telecommunications surveillance, Federal Department of Justice, privacy