Surveillance powers of the police and the protection of personal data

Abstract

In the fight against serious crimes such as terrorism, law enforcement officials and intelligence services employ secret surveillance measures to gather personal data to prevent, detect and investigate these offences. Moreover, personal data is exchanged between public authorities, international actors, as well as private entities in order to safeguard national security. These activities inevitably interfere with fundamental rights. Although national security is a legitimate objective to achieve, fundamental human rights ought not to be disregarded in democratic States, which follow the rule of law. In this paper, the right to privacy and the protection of personal data on the international level are elucidated, the international and national (Germany) collection and transfer of personal data are elaborated upon and case law of the European Court of Human Rights, the Court of Justice of the European Union and the German Constitutional Court is presented. The essential question in this paper is under which conditions interferences with the right to privacy and the right to the protection of personal data may be legally permitted. The core argument is that based on the jurisprudence of the courts, general criteria can be identified that guide lawful and proportional measures of surveillance.