constitutional complaint, because under normal circumstances nobody would become
cognizant of this fact, at the time of the surveillance or any time afterwards.
Covert surveillance creates a power relation grounded in a lopsided informational situation,
and it is this asymmetry that causes an effective and direct infringement, even if no act of
surveillance has been actually authorized. Where people can be kept under constant
surveillance and that surveillance is covert, those people can be kept under total control as
well. Surveillance of this description “normalizes” people in the sense of encouraging
conformity. As a result, people will begin to act as if they are being watched regardless of
whether they actually are, and this changes their conduct and interpersonal relations.
Investigating the root of the problem from the perspective of fundamental rights, it is
worthwhile to look at arguments about the deficit of self-determination and devastating
consequences of social psychology that can ensue where citizens lose their control over
information kept on them. [Cf. the Resolution of the FRG’s Constitutional Court of
December 15, 1983 concerning the Census Act; for the most accomplished domestic
explication, see the Constitutional Court’s Resolution No. 15/1991 (IV.13.) AB.] In other
words, the helplessness of the surveillance victim is to a great extent caused by the covert
nature of the act, which nurtures a sense that the surveillance is constant, far-reaching, and
inevitable. [For more on this, see Jeremy Bentham: Panopticon Or the Inspection House,
(1789) and Michel Foucault: Discipline and Punish: The Birth of the Prison, London,
Penguin Books (1991; first published in 1977), particularly pp. 176-184.]
1.2. We wish to draw the attention of the Honorable Constitutional Court to the fact that
other courts have taken a similar view of the affected status of the complainant in deciding
whether the complaint can be formally admitted. For instance, The Federal Constitutional
Court of Germany, based on a constitutional complaint against regulations permitting
covert surveillance, deemed affected status to exist and acted on the complaint as follows:
“In order to lodge an admissible constitutional complaint against a law, the complainant must
demonstrate that the law itself, rather than its implementation only, represents a direct and effective
violation of one his/her fundamental rights. […] At the same time, because the [petitioners] are not
privy to any interference with their rights, they do not have the possibility to contest the act of applying
the law. In such cases, it is of the essence to uphold the ability of concerned individuals to lodge a
constitutional complaint against the law itself, as in all other cases where it is impossible, for divergent
reasons, to file a constitutional complaint against the act of application.” [Resolution of the Federal
Constitutional Court of Germany of December 15, 1970, in the matter of secrets in telecommunications,
commonly known as the Klass Case/’Abhörurteil’ – BVerfGE 30, 1 (16 f.)]
Another, far more recent ruling of the Federal Constitutional Court of Germany, which
examined the adequacy of constitutional safeguards associated with the so-called online
search of premises (“Online-Durchsuchungen”) — a rather similar subject matter — also
supports the perception that affected status can be readily demonstrated even if no
accomplished act of covert surveillance is proven. [BVerfGE 120, 274 (297)].
In its turn, the European Court of Human Rights also deemed admissible a petition, lodged
in the aftermath of one of the cases mentioned above, and it did so despite the fact that the
complainants had turned to the Court over being potentially under surveillance. The
defendant government of the Federal Republic of Germany itself took the view that what