Since the terror attacks of September 11, 2001, the government has subjected its citizens to increasing surveillance without concrete grounds for suspicion. Digital surveillance is the major means to this end, with countless amounts of data being recorded, registered and linked.
Officials say this huge exchange of information is aimed at discovering and preventing terrorist threats.
With great haste in the early years of the new millennium, the various intelligence services became more tightly networked. New agencies such as the Joint Counter Terrorism Center were created, new criminal offenses were enshrined into law, and new databases emerged.
Does the assertion that someone may have planned a crime make them an actual criminal?
Secretly accessing data from the telecommunications, banking, postal and aviation sectors alone was deemed insufficient. The Federal Criminal Police Office (BKA) was restructured as a domestic intelligence apparatus with comprehensive powers for the secret surveillance and investigation of suspicious persons. It could also access online searches in the private sphere of an individual’s computer.
But some of the new laws and state powers were found to be unconstitutional, as was the case recently with the federal police law.
Now, as police unions justifiably complain about the dramatic reduction of officers at all levels, the federal government is once again drafting laws.
In the new legislative package, the possibilities for federal police to use hidden investigators would be extended. Up to now they could only be used for criminal prosecution. But under proposed legislation, such surveillance could be used to head off terrorist threats.
But this is extremely questionable because it extends criminal law to suspicions rather than limiting it to legally defined crimes. It raises the question: Does the assertion that someone may have planned a crime make them an actual criminal?
Among the most critical measures in this arena are regulations extending the exchange of information with the European Union, European Economic Area, NATO member countries and Israel.
The Federal Office for the Protection of the Constitution, the domestic intelligence agency, is to set up joint files with these foreign partners. And this is not just a matter of so-called index files to establish who knows what about a person. The core of this new approach is to establish a comprehensive, institutionalized exchange of information concerning certain events or individuals on an international level.
According to a strict interpretation of the proposed legislation, the partners are supposed to use the data from joint files only for analytical purposes. But that assumption is unrealistic. On what basis, for instance, can we suddenly trust that the U.S. National Security Agency will remain within the law given its massive surveillance program?
In an April 2016 decision regarding the federal police law, Germany’s highest court was very clear: “In no way must the state be permitted to extend its hand to the violation of human dignity,” it said.
According to the draft legislation, the international partners must abide by “fundamental principles of the rule of law” in finding and exchanging information. But what principles of the rule of law are not fundamental, and hence dispensable?
That distinction is already difficult when it comes to Turkey, a fellow member of NATO. Or the United States, which has water-boarded suspects to get information. In comparison, data protection like that ordered by the Federal Constitutional Court seems like a minor issue.
The last German government coalition, with its alliance between Chancellor Angela Merkel’s conservatives and my pro-business Free Democrats, for the first time comprehensively examined security legislation. The central issue then was how the rapid extension of intelligence services might lead to problems in maintaining security.
The reality is that the breathtakingly fast restructuring of the state security system over the last 15 years has led to duplicated work and losses through friction between the different actors.
Instead of patchwork solutions, we now need more police, better technology, parliamentary control of intelligence services, regulations regarding whistleblowers and more judicial monitoring.
Above all, parliament must unravel the tangle of security legislation. The 2013 governmental commission made extensive proposals, which up to now have been ignored.
We must understand: A state is not a constitutional state simply because it operates according to law. Enacting and implementing legal remedies also requires public and parliamentary monitoring.
Germany’s ruling coalition should stop avoiding reality and face up to these facts.
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