The Ethical Dimension of the German Federal Constitutional Court’s Decision Concerning Data Retention

ABSTRACT

In March 2008, the German Federal Constitutional Court (GFCC) has passed an important, even though preliminary, decision concerning data retention. The GFCC’s decision accepts the storage of data, but greatly restricts their use to serious offenses like murder and organized crime.

From an ethical point of view, it is particularly interesting to look at the justification given by the GFCC, which relies heavily on the argument that the “impartiality” (Unbefangenheit) of communication will be thoroughly damaged if feelings of being watched spread in a society. This argument is examined in view of two contrasting theoretical approaches: Discourse ethics and evolutionary contractarian theory.