Happy Birthday, Edward Snowden, and sorry about Germany!

In case you hadn’t noticed, heard or remembered: today is Edward Snowden’s 32nd birthday. So first of all:

Happy Birthday, Edward Snowden,

and thank you again for everything you have done to make the world aware of what the NSA, the GCHQ, the BND, the CSE, the governments of the USA, the UK, Australia, Canada, Germany, New Zealand and others are doing against us and not in our names.

I almost feel like apologising in turn for everything that we have failed to achieve over the past two years since you revealed yourself to the world and got marooned in Russia when the USA cancelled your passport while you were en route to Latin America (I feel I need to mention this again because some people – like the stenographers at the British Sunday Times – still cannot get their research right – or be bothered to do any research at all). In the USA, although some surveillance reform is underway, it is not actually as substantial as we may have hoped. In the UK, the government is keen to press ahead with their controversial Snoopers Charter. Almost everywhere, awareness and debate of mass surveillance in the general population is low. After all, we think we have nothing to hide and therefore nothing to fear.

However, this week’s award for the most epic anti-surveillance #fail has to go to the German government. For two reasons.

Data Retention

First of all, there is the question of data retention that’s been discussed in Germany for years now. In 2006, the European Parliament issued a Data Retention Directive which required member states “to store citizens’ telecommunications data for a minimum of 6 months and at most 24 months.” The directive was struck down by the European Court of Justice in 2014 “for violating fundamental rights”:

The Court took the view that the Directive does not meet the principle of proportionality and should have provided more safeguards to protect the fundamental rights to respect for private life and to the protection of personal data.

What is more, Germany’s own constitutional court declared data retention unconstitutional in 2010. There is widespread opposition against it both in the German parliament and amongst the German population. And yet, Merkel’s government are trying to bring it back. A reminder: Germany is currently being run by a “grand” coalition between Merkel’s Christian Democrats and the party that should be their nemesis but seems like more of their subsidiary these days: the Social Democrats (SPD).

The SPD had a vote this weekend on whether or not to support their coalition partner’s data retention plans. The outcome was 144 to 88 in favour with 7 abstentions. So, rather than to reform surveillance in Germany, at a time when Germany’s own foreign intelligence agency, the BND, is under fire for potentially helping the NSA spy on European corporations and diplomats (more on that later), the German government seems determined to take a few steps backwards and re-introduce a practice that was previously struck down by both its own constitutional court and the European Court of Justice.

Merkel’s phone and the NSA’s selectors

Which brings me to the second reason for why the German government really doesn’t have a lot to be proud of right now. Readers may have noticed my German post last week. In it, I essentially wondered (or rather ranted) at the following paradox: The German attorney general has just ended his investigation into NSA spying on Angela Merkel’s mobile phone, saying that he has not been able to produce sufficient evidence. He also complained that the USA just wouldn’t help with the investigation. I am not going to get into another argument about why it is ludicrous to expect someone whose potentially illegal conduct you are investigating to provide you with evidence of that self-same conduct. I would like to once again draw attention to the paradox, however, that at the same time that the German attorney general is unable to produce any conclusive evidence, the German parliamentary NSA inquiry committee, tasked with investigating NSA spying in Germany, has been trying unsuccessfully to get access to a certain list of NSA selectors that could be evidence of the fact that the BND helped the NSA with its spying in Germany and Europe.

You would think that a government with a declared interested in investigating NSA spying would support its own parliamentary inquiry and allow it to gather the evidence it needs. Not so.

Rather than to hand the list of selectors over to a committee specifically formed to investigate such matters, the German government – who, in a show of indignation declared some time ago that spying between friends just wasn’t on – send a friendly inquiry to the US government to ask if it was okay for the German government to show the list to its parliamentarians. Naturally, the USA weren’t too keen on that. So, the German government decided on a compromise: it would name one single person who would be allowed to review the list and tell parliament all about it. Well, not all about it, actually because that “person of trust” as the post is so aptly named, would not be allowed to speak about the juicier details of what they found. Needless to say – yet again – how perfectly ludicrous this is.

Updates:

Unsurprisingly, the decision has come under a lot of criticism (and threats for legal action) by the opposition and privacy campaigners. Unfortunately for Merkel and her minions, who are working tirelessly to keep everyone happy (and failing because no one is), the US government has now, according to the German newspaper BILD am Sonntag, said that it won’t even agree to that single person seeing the list and that it will “will consider decreasing cooperation between the US and German intelligence services” if German parliamentarians are given access to it. It seems that the German government now has the following options:

1.) Show the list to no one at all, thus effectively ending that line of inquiry and obstructing the investigation even further.

2.) Go against the USA’s wishes and release the list.

The result of either choice will most certainly be unhappiness. And making the USA unhappy seems to be something Merkel’s government seems to be hardwired not to do. Given the length to which the German government has gone so far to obstruct the work of its own parliamentary inquiry (citing the “vital” cooperation with the USA and transatlantic relations as reasons), and that SPD chief Sigmar Gabriel, who a few weeks ago demanded the government grow some balls and just hand the list over, also demanded that Edward Snowden be called as a witness before the same inquiry committee and then did a complete U-turn on that a year ago, I think we can make some assumptions about how the current situation is going to turn out.

So I am deeply sorry, but two years post Snowden and on the day of Snowden’s 32nd birthday, things aren’t looking that bright for surveillance reform, privacy, civil liberty or even democracy in Germany.

“On the wrong side of history.”

Filmmaker Laura Poitras has recently urged the German government once again to grant Snowden asylum, saying that her own country (the USA) was on “the wrong side of history”. Given that the German government is prepared to disregard the authority of its own parliament to avoid tensions with the USA, it should be obvious that Germany will probably not, as Poitras hopes, “lead the way and grant asylum to Edward Snowden.” Rather, it seems pretty clear by now which side of history the German government is on. Sorry about that.

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