German surveillance laws: placebos, poison, and also bad sport

By EDRi · July 27, 2016

The German parliament, the Bundestag, voted in favour of two contentious surveillance laws in July 2016. These are not only disappointing with regard to their content but also as cases of dubious parliamentary procedure.

Those observing international politics may be familiar with the phrase “burying bad news”. The phrase gained notoriety through leaked emails from an advisor to the British government, Jo Moore. She apparently tried to exploit the diversion of public attention as a result of what we now call 9/11 to encourage releasing any potentially inconvenient news. Governments across Europe seem to have developed similar tricks in their own local ways. A Dutch tradition has been observed for difficult parliamentary questions to be answered very late on the last Friday of a parliamentary session. The German variety is probably best described as a sport: it is all about advancing unpopular measures at breathtaking speed, while trying to further evade the limelight. This is generally done by seeking to hide in the shadow of a football tournament and the German national team’s matches in particular.

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For a warm-up, there was a VAT increase, passed one day before Germany’s quarter-final in the 2006 World Cup, a ministry announcement on detailed plans for a comprehensive employee salaries database made on the day Germany played in the European Championship’s semi-final in 2008, and a law raising compulsory health insurance rates, passed one day before Germany entered the semi-final at the World Cup in 2010. In 2012, while a German semi-final match was actually going on at the European Championship, the Bundestag executed what must be considered an extreme training session: With just 26 of 620 members present, the plenary went through the second and final third readings of a bill that would make data sharing between residence registration authorities and businesses the default. An opt-in had been changed to an opt-out at the committee stage just three days earlier. No actual debate took place in the plenary, speeches were only submitted in writing. The whole legislative charade was accomplished in 57 seconds. It was an impressive exercise, but also an easy target for opponents: after a public outcry politicians turned their efforts to back-peddling, and the law was stopped in the second chamber, the Bundesrat.

With this background it would be difficult not to regard the legislative schedule of June and July 2016 as a case of burying bad news. But this was also the time before the summer recess, the last one before relations in Germany’s “grand coalition” are expected to deteriorate ahead of the general elections in autumn 2017. Whatever the reasons, the two surveillance laws that were debated seem like quick fixes that do not solve the problems they are supposed to counter.

A so-called “anti-terror package” was hastily put together over the spring as a response to recent terrorist attacks and as an implementation of the EU’s Terrorism Directive. It contains measures such as the abolition of anonymous SIM cards, use of undercover police agents for preventive measures, permission for secret service surveillance on minors from the age of 14, and a database providing constant exchange with foreign states. The last measure is a clear violation of a principle laid down in the German constitution that person-related data may not be exchanged between police forces and secret services. This bill cleared the last parliamentary hurdle in the Bundesrat on 8 July 2016. On 20 June, during the obligatory expert hearing, the opposition walked out in protest against what they called a farce due to the selection of experts and the rushed proceedings.

Lagging behind just a few steps in the legislative process is the new law on Germany’s foreign intelligence service (Bundesnachrichtendienst, BND). It was given its first reading in the Bundestag also on 8 July 2016. After the Snowden revelations and arduous work in a parliamentary committee of inquiry that uncovered grave legal issues about the workings of Germany’s foreign intelligence, this law seems like an attempt to put an end to any such deliberations by simply legalising everything. The law even extends the BND’s surveillance options beyond current practices and into the domestic realm, and it further complicates parliamentary oversight.

EDRi member Digitalcourage staged a quickly organised protest as both laws went through their respective votes at the Bundesrat and Bundestag on 8 July – the last day before the recess and the morning after Germany had lost their semi-final against France at the European Championships. Visualising anti-terror laws as mere placebos and extended surveillance as poison for liberties, pill boxes were handed out to bystanders.

If pills won’t move parliamentarians to exercise more diligence in law-making, maybe they should consider this: the German football team lost a knock-out game shortly after or before all of the contentious votes we have listed here – while the only tournament for which we hardly found anything to report was the World Cup in 2014. Grand Coalition waves through anti-terror law (only in German, 24.06.2016) The new BND law: everything the foreign intelligence service does will simply be made legal – and even extended (only in German, 30.06.2016)

Digitalcourage: action report – surveillance laws are placebos against terror and poison for liberties (only in German, 08.07.2016)

EDRi-gram 14.10, ENDitorial: Next year, you’ll complain about the Terrorism Directive

(Contribution by Sebastian Lisken, EDRi member Digitalcourage, Germany)