A. Introduction

In its recent decision of April 12, 2005, Germany’s Federal Constitutional Court (FCC) addressed concerns that advances in the technologies of surveillance will erode fundamental rights.  Though it rejected the petitioner’s call to limit use of the Global Positioning System (“GPS”) to track the movements of suspects,the Court did warn that surveillance technologies working in tandem posed privacy risks that were greater than the sum of each one working alone. The Court required investigators from different agencies and states to coordinate their activities and disclose all ongoing surveillance when seeking judicial approval of additional methods and technologies. It likewise cautioned the Bundestag (German Federal Parliament) to monitor advances in surveillance technology and to develop new statutory safeguards that would protect personal data by limiting the use of more powerful innovations.  Yet the Court’s opinion left many questions unanswered. It did not explain how legislators or investigative agencies could avoid unnecessarily and intrusively multiplying the use of surveillance, given the overlapping jurisdiction of intelligence agencies with state and federal police. And insofar as the German Strafprozessordnung (Criminal Procedure Code – StPO) regulates only those modes of surveillance that produce criminal prosecutions, statutory suppression remedies have no clear impact on the investigative use of surveillance for purely preventive or intelligence-gathering purposes.  My essay will explore the implications and limitations of the Court’s opinion with an eye on analogous American law (introduced to gain a comparative perspective.)

B. Procedural Background

The petitioner was a member of the so-called “Anti-imperialist Cell,” an outgrowth of the erstwhile “Red Army Faction,” who appealed his attempted murder convictions for carrying out a series of terrorist bombings. His petitionchallenged the state’s use of GPS technology to monitor his movements. Several government agencies, including the Bundeskriminalamt (Federal Police Agency) and the Verfassungsschutz (Agency for the Protection of the Constitution) in two German Länder, investigated the petitioner and his co-defendant for past and ongoing terrorist offenses. During the course of these investigations, the Bundeskriminalamt and the Verfassungsschutz conducted visual surveillance,...