Can US airliners be shot down?

Safe or Free?

The Aviation Security Act

January 5, 2003: A motor glider circles the skyscrapers of Frankfurt's banking district. Whoever is behind the wheel and what they are up to - nobody knows, one thing is clear: a catastrophe like the one in New York must absolutely be prevented.

But that quickly turns out to be not only a practical, but above all a legal problem: Is it allowed to shoot down an airplane to prevent worse things from happening? Who gives the order? And who is going to fly - when the Bundeswehr is only allowed to be deployed domestically in very limited cases, such as natural disasters?

First a police helicopter chases the plane, then two Bundeswehr fighter jets try to push it out of the airspace over the city center. The then Defense Minister Peter Struck gave the order for this beforehand.

After a few hours, the pilot can be moved to land - a confused German student who is then admitted to psychiatry.

Airplanes can be shot down

This opens the political debate - and ultimately leads to the Aviation Security Act of 2005, which, along with many other security issues, also regulates the shooting down of aircraft:

"If, according to the circumstances, it can be assumed", so it says in Paragraph 14, "that the aircraft is to be used against human life" and no further measures can avert the danger, "direct action with armed force" is legal .

Defenders of freedom rights like the FDP politicians Gerhart Baum and Burkhard Hirsch are in storm. In the worst case scenario, shooting down a passenger plane would kill hundreds of innocent people, they argue; the state has no right to do so. They do not accept the counter-argument that this could at least save the lives of other people on the ground:

  • First of all, at the moment of shooting down, it is only a guess, not a certainty - no one can say what the pilot is actually up to.
  • Secondly, it is not up to the state to weigh lives against each other, that is to say: to regard the lives of passengers as less valuable than those of those who are potentially endangered on the ground.
  • Thirdly, the law violates the human dignity guaranteed in the first article of the Basic Law.

The law is overturned

Baum and Hirsch finally file a complaint with the Federal Constitutional Court - and get it right. The judges rely primarily on the guarantee of human dignity in the Basic Law:

"Those affected", it says in the judgment, "are reified and at the same time deprived of their rights by the fact that their killing is used as a means to save others; while their lives are unilaterally disposed of by the state, the (...) aircraft occupants become valuable agreed upon, which comes to man for his own sake. "

The federal government at the time, above all Interior Minister Otto Schily, is not happy with the verdict: According to Schily, politicians should not duck back in borderline cases, but should instead take responsibility. However, the judgment of the Federal Constitutional Court is so clear that further attempts in this direction will probably be unsuccessful.

The decision on the counter-terrorism file

From an institutional point of view, counter-terrorism in Germany is patchwork. Numerous authorities sit at the table when it comes to substantiating an initial suspicion: the Federal Criminal Police Office, the State Criminal Police Offices, the Federal Police Directorate, the Federal and State Office for the Protection of the Constitution, the Federal Intelligence Service, the Military Counter-Intelligence Service and the Customs Criminal Police Office.

It can happen that several services are observing at the same time, or one authority laboriously finds out something that another has long known. The problem cannot be solved, but it can be alleviated - this is the aim of the Conference of Interior Ministers and in 2006 gave the go-ahead for a file that is supposed to network the information of all the services involved. In December of the same year, the Bundestag passed a corresponding law.

This file not only collects data from people who have already committed criminal offenses, but also from suspects - information about education and job, travel and religious affiliation, as well as bank and telephone connections. SPD internal politician Dieter Wiefelsp├╝tz even calls for "sexual abnormalities" to be registered.

Such objections call data protectionists on the scene: The file opens the door to state snooping far beyond the intent of counter-terrorism. There is a risk that data from completely innocent people would be collected on a large scale just because they had once been in contact with a terrorist suspect.

In addition, the establishment of the file violates the constitutional requirement to separate the police and secret services. In 2006 the project promptly received the "Big Brother Award", a negative prize from several data protection organizations.

File without effect?

However, the worst fears do not seem to be confirmed. In the USA, for example, the authorities keep a comparable list of terror suspects, which includes a whopping one million people, including congressmen, nuns and infants - the latter probably because of duplicate names.

In Germany, on the other hand, it is estimated that the number of persons recorded is well below 20,000; three quarters of them live abroad.

In addition, data protection officials indicate with a slight irony, it is unclear whether the services can even exploit the possibilities of their files: they are still struggling with software problems and with the often confusing variant-rich spelling of some Arabic names.

In 2013, after examining a judge's complaint, the Federal Constitutional Court declared that the file was in principle compatible with the Basic Law, but demanded improvements by 2015. The Bundestag passed various changes to the law in July 2014 ..

Data Retention Act

Every telephone number you dial is noted, when you hung up again, how long you surf the net and to whom you send e-mails as well, and what amounts of data you move along with it. Sounds pretty scary? This is exactly what a law of 2007 wants it to be.

All telecommunication data from each user should be stored for six months without suspicion and without special arrangement - in reserve, so to speak, in case a law enforcement agency wants to access it and a request starts with the respective communication company. Although the Bundestag is primarily only implementing an EU requirement, German data protectionists are alarmed.

According to the Federal Data Protection Commissioner, the law lacks any proportionality: a gigantic amount of data is to be kept, but only a tiny part of it would ever be criminally relevant.

And: A lot can be done with the stored data - for example, creating profiles that provide information about the communication behavior of individual users and thus could be of interest to the state as well as to economic and market research companies.

Particularly explosive in this context: The legislature has not made any regulation on how the stored data should be protected from unauthorized access.

35,000 people complained

In this case, too, the Federal Constitutional Court has to deal with the law - and this is a legal premiere: for the first time, almost 35,000 people file a constitutional complaint together.

In fact, in 2010 the court declared the specific design of data retention to be unconstitutional because it violated the postal and telecommunications secrecy guaranteed in Article 10 of the Basic Law.

Storage is not fundamentally inadmissible; however, it should only be carried out in a decentralized manner, and the law enforcement authorities should only access the data in the most serious cases, which must be precisely identified.

In April 2014, the European Court of Justice also declared data retention to be unconstitutional. Storage without suspicion is not compatible with EU law and violates the right to privacy.

At the end of 2015, a new, slightly modified law came into force in Germany. From July 1, 2017, telecommunications companies should store their data for between four and ten weeks, depending on the type of data. The Federal Constitutional Court will also have to decide on this law; several lawsuits have already been filed.

Authors: Kerstin Hilt / Tobias Aufmkolk