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A victory for mass surveillance?

Manasi Gopalakrishnan
November 15, 2016

Judges in Karlsruhe have ruled out access to a list of search parameters Germany's foreign spy agency used to track millions of targets worldwide. What does the verdict mean for state-sponsored mass surveillance?

BdT Deutschland BND Außenstelle Bad Aibling
Image: picture-alliance/dpa/A. Warmuth
BdT Deutschland BND Außenstelle Bad Aibling
Image: picture-alliance/dpa/A. Warmuth

In June 2013, media reports based on documents provided by whistleblower Edward Snowden revealed the extent of global surveillance programs conducted by the US National Security Agency (NSA). The leaks had a massive impact in Germany, especially after it was found that the NSA was spying on European leaders and heads of government, including German Chancellor Angela Merkel.

The findings prompted the "Bundesnachrichtendienst" (BND), Germany's foreign spy agency, to deactivate around 40,000 of several million "selectors" - a collection of search parameters, including telephone numbers, keywords, URLs and addresses.

On Tuesday, Germany's constitutional court ruled that the government was not obliged to transfer this secret list of selectors to a special parliamentary fact-finding commission on the NSA revelations. The judges justified their decision by saying that the government's need to keep certain data confidential was more important than the commission's desire for extensive details on the selectors list. Releasing the list without US approval could also endanger the functioning of intelligence agencies and jeopardize Germany's effectiveness in matters of national security, they added.

The controversial list

Graulich - a trained lawyer and administrative judge - was sought out to evaluate the selectors list
Graulich - a trained lawyer and administrative judge - was sought out to evaluate the selectors listImage: picture-alliance/dpa/J. Woitas

The ruling was a response to a complaint filed by two opposition parties in September 2015. The Greens and Left Party filed the case together with the leading figures of a fact-finding commission investigating the US spy agency's links with its German counterpart.

One of the commission's main tasks was to look into the selectors list, which included search parameters from the NSA that the German spy agency used to track millions of surveillance targets around the world, Anna Biselli of the digital research organization "Netzpolitik" told DW. In the course of its investigation, it was found that the BND monitored sensitive targets, including European governments, institutions and corporations.

The commission had last year demanded direct access to the data, but instead of passing on the actual information, Chancellor Angela Merkel's conservative Christian Democratic Union and their junior ruling coalition partners, the center-left Social Democrats, agreed to appoint Kurt Graulich - an administrative judge - to evaluate the list and present a report to the German government. Graulich's evaluation report, a 263-page document, did not discuss the selectors as such, but detailed the nature of the 40,000 selectors in the BND's database. Graulich's report was criticized by the opposition, not only because of the judge's relatively low level of expertise on matters concerning digital search parameters, but also because his legal arguments seemed to be taken directly from the BND, German daily "Süddeutsche Zeitung" alleged in a November 2015 report.

Risks for digital whistleblowers

"The commission wanted to look into the list of selectors because it wanted to know which targets the BND illegally spied on for the NSA," Biselli said. "It may have contained important information on the extent of the BND's transgressions. The list could have also revealed whether the BND could have identified selectors that were used to target European governments or whether the lists were incomprehensible and unreadable for the BND, which operated them for many years without knowing who it was spying on," she added.

Furthermore, members of the commission also wanted access to the list to get an independent idea about how Germany's external spy agency conducted monitoring activities. Parliamentary supervision of activities by the secret services could not have functioned only on the basis of reports by the government and spy agencies, Biselli argued.

Repercussions for basic rights

But Tuesday's verdict proved to be a setback for politicians trying to get to the bottom of the BND's activities. "The ruling is a blow for any clarification on the activities of the BND and the NSA and for the entire parliamentary monitoring of secret services," Biselli told DW.

"The government has been successful with its universal argument that the state's welfare is in danger if the list is revealed. Unfortunately, this argument is widely used to avoid giving out information. This makes the parliament's job of monitoring the BND effectively very difficult, although that is exactly one of its responsibilities," she added.

The complainants, including Greens politician Konstantin von Notz, also echoed Biselli's misgivings. "Large portions of years-long and illegal BND practices will remain in the dark," von Notz said in Berlin, adding that future scandals and massive violations of fundamental rights were "pre-programmed" following the judgment.

Martina Renner, the head of the Left Party in the NSA commission, also said that against the backdrop of Donald Trump's victory in the US presidential election, the ruling was a "fatal sign" that the BND and NSA were being given access to private information. "Today is a bad day for democracy and fundamental rights," she told reporters.

Meanwhile, the threats of cyberattacks and Islamic terror have prompted the German government to inject more money into the BND, which is slated to receive around 73 million euros ($78 million) to improve its mass surveillance programs and employ new personnel.

For digital researcher Anna Biselli, this "sends a signal that the secret services will continue to have an independent existence without being monitored effectively - with the blessing of the government."

Manasi Gopalakrishnan
Manasi Gopalakrishnan Journalist and editor from India, compulsive reader of books.