Year:    2022

Author:    Lassahn, Philipp

Der Staat, Vol. 61 (2022), Iss. 3 : pp. 407–432

Abstract

Protecting Data, Protecting People

Informational Self-Determination as a Means to an End, Illustrated by Reference to the Practice of the German Federal Criminal Police Office

Data protection law plays an important, ever-expanding role in the law as well as in society as a whole. However, it has partly lost track of its original purpose – protecting people, not data itself. There are therefore various instances of disproportionate and misguided data protection efforts, in both legal thinking and practice. Such instances lead to society becoming dismissive (even ridiculing) of data protection efforts, which can cause data protection objectives to fail just when it is needed the most. The root of this problem lies in conceptual and doctrinal flaws in the evolution of the fundamental right to informational self-determination that is widely seen as the constitutional backdrop of German data protection law. Instead of granting fundamental rights protection to each and any bit of personal data regardless of context, we should pursue ideas that see data protection and informational self-determination as simply tools to protect people from actual threats to their various other fundamental rights and liberties. By reference to the example of background checks as run by the Federal Criminal Police Office in Germany, it becomes apparent that – especially from the perspective of those affected – a world in which public authorities have as little knowledge about individual citizens as possible is not necessarily the least dangerous of scenarios.