Abstract

The Framework of a Security Law guided by Human Rights

The discussion on the security architecture in Germany was triggered by the terrorist attacks after 9/11. This security architecture not only concerns the tasks and structures of the police and intelligence agencies, but also civil protection and the inclusion of private companies. In the context of this interdisciplinary approach, national security law focuses on providing security by state authorities. The powers of these authorities are outlined and limited by human rights. For police authorities this is not a new development. Nevertheless, within a security architecture of considerable complexity the influence of human rights is of growing importance. The development of the German security law is influenced by progressive Europeanization and internationalization. The European Court of Human Rights decides on a case-by-case basis on aspects of security. Regarding the European Union, what matters is not only the law regulating the powers and cooperation of law enforcement authorities, but also reforming the European protection of personal data, including a directive on justice and police. Due to social changes in the information society, the role of network systems is also growing in security. Processing personal data is of crucial importance for providing security. In Germany, the collection and the transmission of data in interrelated data file systems, in which numerous authorities including intelligence services may be involved, are governed by new legal provisions. Cooperation of different authorities, which may apply different laws, has to be guided by a special legal framework. As a consequence, the design of the legal regime for providing internal security is essentially influenced by elements of the regime of data protection. The German Federal Constitutional Court in its jurisprudence has elaborated the outlines of this legal regime concerning the collection of data at an early stage, i.e. before a concrete risk has realized, and the transmission of data between law enforcement authorities on an automatized basis. Police forces still interfere with citizens' rights in a physical way using the traditional means of law enforcement, e.g. search and seizure. However, the interference by means of data collection or transmission is increasingly important because of social changes and European cooperation. National security law has to be reconsidered in the light of data networking. As a consequence, the human right to the protection of personal data is the core element for the development of security law.