Data retention Against general suspicion

Surveillance in real time: the play “Supernerds”
Surveillance in real time: the play “Supernerds” | © David Baltzer

There is hardly another topic that has so excited public debate as that of data retention. While its proponents argue it is needed for the fight against crime, its opponents see it as threatening fundamental rights.

Telephone and Internet have long been more than communication media. They open social spaces in which we cultivate friendships, and commercial spaces, which are becoming more and more important for the retail sector. These spaces are dominated by private companies that organize interpersonal and economic contacts, thus acquiring knowledge about us and generating from this knowledge profits. In this digital world there exist few control mechanisms.

Legislative initiatives against high-tech crime

A part of everyday life that eludes legal and executive control constitutes an essential problem for state power. One recurrent attempt to bring the digital world under state control is so-called “data retention”. The “Law on the Reform of Telecommunication Surveillance and Other Covert Investigation Measures” of 2008 obligates private telephone and Internet providers to make available to state investigators the traffic data of the past six months. Traffic data consists, for example, in telephone numbers, the duration of a call, the sent and received radio cells of cell phones, IP and e-mail addresses. From this information investigators can reconstruct detailed communication and movement patterns, thus compiling complete life profiles. The argument for the legislative initiative: international terrorism and organized crime can be combated only by the analysis of all areas of the life of suspected criminals. High-tech criminality requires high-tech counter-measures, which cannot spare traditional fundamental rights.

Broad civil society protest

A constitutional complaint temporarily tipped the law in 2010 with the argument that it constituted a disproportionate interference with fundamental rights. In June 2015 the Federal Government again presented a bill for the “introduction of a storage obligation and maximum retention period for traffic data”. Apart from the new phrasing few details have changed. Again location, duration and partners of communication acts are to be recorded in order to be made available, if need be, for police investigation. In many European countries similar laws have come into force and communication data are sometimes stored up to twelve months. In Germany, however, a sharp legal and public controversy has arisen and a broad civil society protest formed, led by Net activists, liberal politicians and jurists. Nevertheless, in October 2015 the new law on data retention in Germany was adopted.

Population under general suspicion

One of the few creative artists who have expressed themselves on this issue is the writer and lawyer Juli Zeh. She has stressed that with the mass storage of data we lose the presumption of innocence and so one of the important pillars of civil liberty, placing the entire population under general suspicion. Because this far-reaching intervention in our liberal social order takes place in digital space, however, it remains for us abstract. A simulation on the online portal of the weekly newspaper Die Zeit shows vividly how closely a life can be monitored when the communication data are known. There the data of the politician Malte Spitz (Alliance ’90 / The Greens) that were gathered within the framework of the data retention law have been published and displayed graphically so as to reconstruct his life for half a year.

Art projects also attempt to make abstract discourses visible, experienceable and comprehensible. The play Supernerds, which could be seen in 2014/15 at the Cologne Schauspiel, hooked up during the performance to interviews with “digital dissidents” such as Edward Snowden and interacted with the audience. Members of the audience could accredit their smartphones and then monitor others in real time while their own traffic data could also be read out and presented. The artist Florian Mehnert has gone one step further: he has hacked smartphones and presented films and conversations from them in his installation Menschentracks (i.e. People Tracks). Freely suspended in a room are 42 tablet computers, giving the impression of a control centre. The viewers feel the invasion of the private sphere and are embarrassed by the voyeurism.

Concern about conformity

All critics agree in their concern that the possibility of constantly tracking people’s lives makes for conformity, because no one then dares step out of line. But critics also emphasize that constant visibility in the digital world is the result not only of external surveillance and the expression of a state that is becoming authoritarian. For consumers of telephone and Internet services actively disclose more and more about themselves because they want to be present in social media. In the debate, however, the economic dimension is hardly mentioned: companies and countries invest enormous resources for the development and operation of surveillance structures. These are resources paid for by the consumer and taxpayer, and resources that are lacking elsewhere. A key question is therefore whether we want to live in a state for which intelligence services are more important than kindergartens, swimming pools, hospitals and museums.