Stih & Schnock : "Schleyer - Gang"
by Stih & Schnock
In the 1970s, a kind of state of emergency reigned in the Federal Republic of Germany. Despite the different political parties participating on the emergency task forces that were set up, a consensus was soon reached: "We can expect the citizens to make sacrifices", because, given the prevailing impression that the state was under threat, the populace could be expected to accept restrictions to its basic rights and liberties.
It was the time of dragnet surveillance and concerns about security inside the country. Universities and even the Academy of Art in Karlsruhe were suspected of being hotbeds of terrorist activity. Classes practicing drawing nudes in a park were monitored from a distance, approach roads checked and finally the studios then searched. Creativity was unpredictable and was automatically associated with the terrorist scene. Spatial proximity to the Federal Constitutional Court and the Bar of the Federal Supreme Court was a further indication of increased grounds for suspicion. After terrorist attacks students were arrested because they were riding motorbikes or because they looked like wanted persons. The most striking phenomenon of the era was the wanted posters, for all citizens of the Federal Republic were called upon to "compare" the black-and-white portraits on these poster with what they saw going on around them and to carefully study the people they encountered in their daily lives, as if to say "After all, you only have to look at their faces" to tell that they are public enemies. Mass hysteria was whipped up, with the result that once again neighbors started spying on each other, particularly if somebody's lifestyle did not fit the received patterns and beliefs. Such suspicions would culminate in the statement "They are members of the Schleyer gang." Young people living in apartment blocks, preferably the kind with carports located near to highway junctions corresponded to the type the dragnet surveillance system was out to get. The "energy-saving program" made it possible to find out from the public utilities who was paying his or her electricity bill in cash, and making themselves even more suspicious by likewise making cash payments on deposit when renting a new apartment. Lists of car license plates were stored systematically in files in order to track down duplicates and produce movement patterns for presumed terrorist sympathizers and possible suspects. The driving force behind and organizer of this comprehensive computer-assisted data entry process was Horst Herold, President of the Federal Criminal Office (BKA) from 1971 through 1981. The criminal identification services (fingerprint identification system, lockers, typewriters, printed matter, handwriting, weapons used in criminal acts etc.), search methods (dragnet searches, undercover and observation surveillance, targeted searches etc.) and databases (LISA, PIOS, PIZ etc.) initiated and restructured by Herold did indeed bear fruit but, of all things, the crucial leads given in the Schleyer kidnapping case were not followed up. After Schleyer's murder, the "great audio surveillance offensive" was launched, aimed at making it easier to trace the apartments of conspirators in large apartment blocks (section 103 in the Code of Criminal Procedure, StPO, passed by the German parliament in 1978 – in contrast to targeted bugging of individual apartments = "small audio surveillance offensive"). This innocuous-sounding euphemism for the infringement of the private sphere of persons of blameless repute remained fixed in the collective memory.
The accumulation of vast collections of data in the computers of the police force, the press agencies and the BKA automatically infringed disinterested parties' right of privacy and stirred up fears of a police state. This led, in 1977, to the appointment of a Federal Commissioner for Data Protection. Since 1979, the latter has been producing an annual progress report, providing comprehensive information on data protection problems. In the Census Verdict (of December 15, 1983), the Federal Constitutional Court stated fundamental objections:
"However, individual self-determination presupposes – even under the conditions prevalent using modern information processing technologies – that the individual shall still have the freedom to decide what actions he shall or shall not perform, including the opportunity actually to act in accordance with this decision. Anybody not in a position to judge with sufficient certainty which information pertinent to his person in certain areas of his social environment is generally known and anybody who cannot, to some degree, gauge how much knowledge the people he communicates with actually possess, can be fundamentally constrained in his freedom to determine for himself how to plan or to decide. A social system where the citizens can no longer know who knows what about them when and under what circumstances and the kind of legal system that permits this could not be reconciled with the right to information-related self-determination. Anybody who believes that irregular behavior might be noted down at any time and permanently stored as information, used or transmitted to third parties will attempt not to attract attention by means of such behavior. Anyone who assumes that, for example, participation in an assembly or a citizens' initiative will be recorded by the authorities and that this could result in personal risks may possibly consequently refrain from exercising the according fundamental rights (sections. 8, 9 of the German Basic Law, GG). This would have an adverse effect not only on the individual's opportunities for personal development but also on the common weal, since self-determination is one of the elementary conditions necessary for the smooth functioning of a free, democratic society, which rests on the ability of its citizens to act and to make a contribution to society.
It follows that under modern data processing conditions, free personal development presupposes the protection of the individual from unlimited creation, storage, use and transmission to third parties of personal data relating to him. This form of protection is thus covered by the fundamental right stated in section 2 para. 1 in connection with section 1 para. 1 of GG. To this extent, this fundamental right guarantees the entitlement of the individual to determine fundamentally whether personal data concerning him should be released and how it should be used.