Can the police get unfettered access to Facebook data? Where should the limit be set? How does this apply to International Secret Service Agencies?
The current state of German Law according Henrichs/Wilhelm 2010 and Bär 2011, policing activity consisting of surveillance of Facebook through fake accounts would not infringe on fundamental rights even if the activities consist of amassing Data on specific persons or spying on specific groups.
However, the authors Oermann and Staben consider this approach as incomplete. Their demonstration shows the specificity of continental european legal systems, especially the German one, which shows how almost any sphere of activity has to be measured with the yardstick of its constitution.
Based on new empirical evidence provided by social scientists, the mere fact of the existence of such surveillance activities create an important chilling effect among Internet users, thus paralyzing the fundamental freedoms of expression.
In order to be constitutionally justified, police surveillance activities have to pursue important public policy objectives and constitute minimal encroachment on the rights of individuals to their personality rights of freedom of information. Based on the German constitutional requirement that government officials actions be legislatively founded, and that those foundations provide minimum due process garanties to individuals, it appears that in the current state of the Police powers Acts no specific provisions empower the police to cyber-spy on Facebook. As for the general provisions of the police powers acts and the criminal code relating to collection of data (§ 26 POG-RLP, § 6 HmbPolDVG), StPO (§§ 160 Abs. 1, 161 Abs. 1 und 163 Abs. 1 S. 2 ) appear to be insufficient at this point in time in this factual configuration and in light of the new scientific data, due to their incompatibility with principles of due process:
1- they don’t limit the motives and scope of the data collection;
2- they lack legal-protection mechanisms such as a trust-like mechanism which would oblige the police to manage the Data under supervision of a Data protection officer;
3- by their very nature of secrecy, they prevent the investigated person from challenging the data collection process, thus infringing German due process garanties.
Since the German constitution does not bind foreign agencies, it cannot directly apply. However, the German State has a duty to protect its people from foreign harm, thus a positive obligation to mitigate the infringements by foreign agencies in Germany, that have been uncovered by the recent spying scandals.
Question is, how effective will such obligations be to force the German State not only to negotiate, but to actually protect their citizens from foreign spying activities. The German constitution is a powerful tool that is overriden by the European Contracts and the factual actions by foreign actors in a globalizing world.