On 16 February 2023 the First Senate of the German Federal Constitutional Court held that § 25a(1) first alternative of the Hessian Security and Public Order Act and § 49(1) first alternative of the Act on Data Processing by the Police for Hamburg were unconstitutional and an interference with individuals’ right to self-determination over personal data. The provisions enabled the police in the two German states, Hesse and Hamburg, to process stored personal data through automated means in order to prevent serious criminal acts or avert dangers to certain legal interests. In effect, they enabled what has become known as ‘predictive policing’ – using data to create profiles of suspects before the commission of a crime.
The Court held that the laws violated the general right of personality in Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, Grundgesetz because they did not contain sufficient thresholds for interference and were broadly worded to enable the police to process stored data using automated means. Further, the provisions failed to identify a specific danger because they enabled the use of data for the prosecution of future crimes, and also failed to satisfy the requirements of the principle of proportionality. Of note, the Court also found that the new intelligence that can be gleaned from automated data analysis of existing or previously lawfully collected data has the potential to affect fundamental rights.
The statement from the Bundesverfassungsgericht can be accessed here.
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