Just Judicial Activism? Privacy and Informational Self-Determination in U.S. and German Constitutional Law

Abstract

Technical progress in general, and the booming expansion of the Internet, have increasingly spawned the fear of perfect categorization of individuals in personal profiles and of complete surveillance as in Orwell's 1984 society. That this type of a society would be inconsistent with the main philosophical and legal values underlying Western-style democracies hardly needs explanation. On the other hand, the efficient discharge of governmental function requires a solid basis of information. The U.S. Supreme Court and the German Federal Constitutional Court have reacted to this fundamental conflict between the individual's interest in her and government's need to know in different ways. Whereas the German court found a right to informational self-determination, the U.S. Supreme Court only protects certain aspects of under the headline of the right to privacy. The right to privacy, however, not only protects in the informational sense, but also in the decisionmaking sense. Whether the decisionmaking aspect really has anything to do with privacy as it is commonly understood, is quite doubtful. In the first part of the paper, I outline several aspects of that enjoy express constitutional protection under U.S. Constitutional law and compare this legal situation with their protection in Germany. I will pay particular attention to the use of papers in and reports on criminal proceedings. The discussion will show that the Framers of the U.S. Constitution were well aware of the necessity of protecting at least certain aspects of in the informational sense. The second part of my note is dedicated to the discussion of the general right to and informational self-determination and its limitations. This part will show that German law protects informational self-determination far more comprehensively than U.S. law. I will argue that by redefining the content of the right to and limiting it to the informational aspect, a right right to can legitimately be derived under U.S. law. The Supreme Court's fear of being accused of judicial activism is, therefore, unfounded. To the contrary, in view of the impact of modern technologies and their threat of undermining as a pillar of human existence, there is a strong case to be made for a comprehensive protection of in both German and U.S. constitutional law.