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

86 Pages Posted: 1 May 2000

See all articles by Gebhard Marc Rehm

Gebhard Marc Rehm

Ludwig Maximilian University of Munich (LMU) - Institute of International Law - Comparative Law; Max Planck Institute for Comparative and International Private Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 23, 2000

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 privacy and government's "need to know" in different ways. Whereas the German court found a general right to informational self-determination, the U.S. Supreme Court only protects certain aspects of privacy under the headline of the right to privacy. The right to privacy, however, not only protects privacy 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 privacy 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 privacy in the informational sense. The second part of my note is dedicated to the discussion of the "general" right to privacy 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 privacy and limiting it to the informational aspect, a general right right to privacy 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 privacy as a pillar of human existence, there is a strong case to be made for a comprehensive protection of privacy in both German and U.S. constitutional law.

Suggested Citation

Rehm, Gebhard Marc and Rehm, Gebhard Marc, Just Judicial Activism? Privacy and Informational Self-Determination in U.S. And German Constitutional Law (January 23, 2000). Available at SSRN: https://ssrn.com/abstract=216348

Gebhard Marc Rehm (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

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Ludwig Maximilian University of Munich (LMU) - Institute of International Law - Comparative Law ( email )

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