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54 Hastings L.J. 751 (2002-2003)
German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance

handle is hein.journals/hastlj54 and id is 787 raw text is: German and U.S. Telecommunications
Privacy Law: Legal Regulation of
Domestic Law Enforcement Surveillance
The legal systems of Germany and the United States contain
detailed rules that regulate the surveillance of telecommunications by
domestic law enforcement agencies.1 One initial question about this
* © 2003, Paul M. Schwartz, Professor of Law, Brooklyn Law School. I wish to
thank the American Academy in Berlin for their support while I was a Berlin Prize Fellow
there in Fall 2002. I also wish to thank the German Marshall Fund for a research
fellowship and their offer of a residency at their Transatlantic Center, Brussels, Belgium in
Spring 2003. This work also benefited from the support of Dean John Wexler and the
Dean's Research Fund of Brooklyn Law School.
John Bauman III, Hans-Peter Bull, Alexander Dix, Mark Eckenweiler, Chris
Hoofnagle, Robert Gellman, Hansj6rg Geiger, Michael Gerhardt, Ted Janger, Orin Kerr,
Lance Liebman, Viktor Mayer-Sch6nberger, Spiros Simitis, Daniel Solove and Stefan
Walz made helpful comments on earlier versions of this Article. This work was presented
at the Enforcing Privacy Conference on November 14, 2002, in San Francisco, California,
which was sponsored by the Hastings Law Journal; the Samuelson Law, Technology and
Public Policy Clinic at the University of California (Boalt Hall) School of Law; and the
Institute for Law and Economic Policy. It was also presented on December 10, 2001 at the
American Academy in Berlin. I am grateful for suggestions and comments made on both
occasions. Unless otherwise noted, all translations are my own.
1. This Article's examination of telecommunications surveillance will be restricted to
activities carried out by domestic law enforcement agencies in enforcing criminal law.
Surveillance also takes place in Germany and the United States alike under separate
foreign intelligence statutes; the issues concerning that kind of surveillance are sufficiently
distinct, however, to require separate analysis. Two of the key statutory regulations
regarding surveillance in the context of foreign intelligence agencies are the Foreign
Intelligence Surveillance Act, 50 U.S.C. § 1803 (2003); and the Article 10 Statute,
Gesetz zu Artikel 10 Grundgesetz, v. 26.6.2001 (BGB1 I S.1254), as amended 9.1.2002
(BGBI. I S.361). It proved difficult, however, for this Article to cabin off entirely the topic
of intelligence agencies. Some of the most important judicial decisions in Germany
concerning telecommunications surveillance emerged in cases involving that country's


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