Regulating Governmental Data Mining in the United States and Germany: Constitutional Courts, the State, and New Technology
Author(s): Paul M. Schwartz
For the anthropologist Clifford Geertz, law is “part of a distinct manner of imagining the real.”1 In Local Knowledge, he argues that, at a fundamental level, legal systems create a way of envisioning the world and then develop different kinds of “techniques”—whether through legal institutions, methods, or doctrines—that make this vision the correct one.2 The consequence is, of course, that the law in different countries will “see” different things. This point proves applicable to the study of comparative privacy law. Building on Geertz’s insight, this Article searches for distinct as well as shared aspects of one area of law in two countries. It seeks to determine whether German and American lawyers, judges, and policymakers are seeing the same or different things when regulating one form of technology—namely, data mining.
As a further matter, current privacy scholarship has a great need for targeted studies that look at specific areas of information use in different countries. After a first generation of broader comparative studies, today’s privacy scholarship needs more targeted analysis of specific areas of data use. As Spiros Simitis has argued, “[e]ffectiveness of data protection law crucially depends on the ability to react in a fashion that focuses on concrete situations of processing, and the ones that are especially important from the perspective of the affected party.”3 In such a fashion, this Article will look at how the legal systems of Germany and the United States respond to the use of data mining by the government for law enforcement and national security purposes.
Keywords: privacy, data protection