Redefining the Right to Be Let Alone: Privacy Rights and the Constitutionality of Technical Surveillance Measures in Germany and the United States


U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative measure has violated a criminal suspect’s dignity, under the premise that every individual has the right to a personal domain in which to develop his personality freely.

Despite the difference in approach, the countries’ highest courts more often than not have reached similar conclusions. In both countries, for example, the home has emerged as the ultimate sanctuary, for different reasons. Under U.S. jurisprudence, it is reasonable to expect that the government will not intrude on an individual’s home. German law, in contrast, recognizes the home as a fundamentally private domain because it is the only space that truly assures the free development of one’s personality and guarantees the preservation of one’s dignity. Nonetheless, this article concludes that the paradigm set forth by Germany’s Federal Constitutional Court may be better equipped to address future privacy concerns arising from new developments in investigative technologies. A key difference between the two regimes is that U.S. law protects the expectation of privacy, whereas German jurisprudence protects privacy itself. By linking privacy to human dignity, the German Federal Constitutional Court has assured that privacy lines are not redrawn simply because investigative technologies get more sophisticated or law enforcement priorities shift.


Comparative and Foreign Law | Constitutional Law | Criminal Law | Criminal Procedure | International Law

Date of this Version

August 2006