When the German grand coalition, consisting of the conservative CDU and the less-conservative and supposedly social democratic SPD, was elected in 2014, many observers noted, that this might be bad for both democratic culture and the rule of law in general. The reason being, that the parliament opposition has no legal means to stop any initiative taken by the government which holds the vast majority of seats. An unholy alliance was forming, as many privacy concerned observes stated, because both the SPD and the CDU have a notoriously bad track record when it comes to civil liberties and rule of law principles. Yesterday, SPD and CDU decided to reinvent the EU data retention guideline and if we connect the dots, this is a sign for more things to come.
So what happened? Yesterday it became clear, that the SPD would make a back-flip regarding the EU data retention directive. The SPD minister of justice said back in January, that mass data retention of citizen’s communication violates privacy rights and the German basic rights. His position was backed by several of the highest democratic institutions in the European Union: the European Court of Justice, the German Federal Constitutional Court, and the Constitutional courts of Slovakia, Bulgaria, Austria, Netherlands and several others came to the same conclusion. The EU data retention directive, which requires ISP’s to collect all communications meta data of European citizen’s is a direct violation of fundamental European rights, those rights that make the EU different from less-democratic states. Why? Because data retention collects data from everyone. One of the core rule-of-law principles is that there must be a suspicion to start a crime investigation. With the data retention direction, this logic is turned upside down: everyone is suspicious now. If the notoriously disagreeing European members independently reach the same conclusion, it must be very close to the truth and it must indeed be dangerous for a democracy as such. Now, the SPD minister is FOR a new data retention directive, because his party leader, Sigmar Gabriel, told him so. Newspapers argue, that this was a strategic decision in bargaining with the CDU. Whatever strategy that is, it will have collateral damage. Why? Because this is only the first step.
The second step became visible when Netzpolitik.org leaked documents about a new Government initiative to increase the Internet surveillance powers of the Federal Office for the Protection of the Constitution, which, besides its noble sounding name, is nothing else but a domestic spying operation. Netzpolitik writes:
With the implementation of department 3C we aim at the improvement and the extension of communication surveillance of internet-based individual communication within the scope of the G-10-law [the Federal wiretap law described by Wikipedia as „similar to Britain‘s Regulation of Investigatory Powers Act 2000 and comparable to the Foreign Intelligence Surveillance Act of the United States“]. 3C is also supposed to analyze all kinds of data obtained by the BfV from various sources. In the digital age, this data often cannot be analyzed manually anymore. Besides that, 3C will deal with new methods and measures for data analysis that require advanced technical expertise as well as a classification in a complex legal framework, without G-10 being relevant.
If we add one and one together; the bulk meta-data collection called data-retention, and the new office that is designed to evaluate this very meta-data in detail, the picture becomes quite clear. Ironically, or rather sarcastically, surveillance advocates argue, that the data retention direct is not about tracking or creating profiles of citizens. Legally speaking, this might be true but technically, this is what this new department will be doing. These two elements are the groundwork for a new surveillance architecture in Germany. But there is more.
With the NSA scandal it became abundantly clear that the Federal Intelligence Service (BND), the foreign spying agency, was violating the legal foundation it was supposed to operate on . The newly established parliamentary control committee quickly realized, that the BND violates several laws that were aimed to restrict its operation (namely the G10 law). Several BND agents admitted that directly in front of the committee. Independent law experts agreed, that the BND was operating in a legal void and that democratic control was not just lacking, but was not able to cope with the massive spying operation at all. Most observers, that the checks and balances are not sufficient and a better democratic oversight is necessary.
That is why the Grand Coalition is supposed to work on a new legal basis. My prediction is, that nothing good will come out of this endeavor. Why? If we keep the previous puzzle pieces in mind (data retention + new office), and contrast this with the dubious track record of CDU/SPD surveillance initiatives of the last 50 years and the behavior of the Grand Coalition obstructing the work of the parliamentary control committee (threatening its members for example), this new law will not restrict the BND operation, but rather legalize what was not legal before. The logical next step will be the legalization of both foreign and domestic spy operations.