The German cabinet has agreed on a new bill to rein in its intelligence agency, the BND. Whistleblower Edward Snowden revealed it had been helping the US spy agency, NSA. But activists say the reform is toothless.
The German government is moving to tighten rules on its foreign intelligence service, the Bundesnachrichtendienst (BND), following a series of revelations that it was acting independently of any government oversight, spying on allies, international organizations and helping the US National Security Agency (NSA) without it ever being appropriately monitored by any parliamentary watchdog.
In a cabinet meeting on Tuesday, Angela Merkel's administration agreed to a new draft bill that would see legal guidelines imposed on spying on European Union citizens, as well as an external committee to oversee the agency.
But the bill is actually a diluted version of what had been originally planned and recommended by the parliamentary committee, building in a number of exceptions to allow the BND to spy on targets within the EU.
The BND will still be allowed to spy on EU institutions, as long as they collect information that will help "counter dangers for domestic and foreign security," and protect "the ability to act of the Federal Republic of Germany."
But the reforms include a new external "judges' committee" - made up of two judges and a federal prosecutor - who will have the power to check at any time the BND's so-called "selectors" (search terms used to scan data).
Not only that, the chancellery will from now on have to approve applications to spy on international communications networks - something that before could be approved at a much lower level within the BND.
While industrial espionage is forbidden per se (something that was already in law, "uncovering procedures of significance to economic policy may be necessary."
As for cooperation with foreign intelligence services, it will be allowed under certain circumstances - in other words, counter-terrorism, supporting the German military, or information that may affect the safety of German nationals abroad.
A slow-burning scandal
In 2013, fugitive whistleblower Edward Snowden revealed to the German public that the BND had effectively been in the service of the NSA - helpfully searching its own networks to supply information to the agency, as well as spying on a number of European diplomats and foreign governments, including then US Secretary of State Hillary Clinton
This somewhat undermining Merkel's angry "friends don't spy on each other" remark, made after Snowden's documents also revealed that the NSA had been tapping her cell phone.
That also seems to have come as news to Gerhard Schindler, the BND president who was sacked in the wake of the revelations this year because after a long parliamentary investigation, it appeared that he did not know what many of his spies were doing.
Though it soon became clear that the problem may have been there before. As Hans Leyendecker told DW in April: "Looking back, it's become clear that this has often been the case at the BND. You could say that the BND, which is turning 60 this year, has always tended to have a life of its own, no matter who was president."
All four parties in Germany's Bundestag agreed that the BND needed to be regulated better (as the parliamentary committees discovered, even BND chiefs were not always aware of who was being spied on). The government parties declared themselves very pleased with the reforms.
"We welcome the fact that a clearer legal basis for the so-called foreign telecommunication surveillance of the BND has been created," said Stephan Mayer, interior policy spokesman for Merkel's Christian Democratic Union. "The definition of unambiguous legal conditions picks up constructively on the criticism of the legal foundations currently used."
But all this is not nearly enough for Germany's community of internet activists, who say the reform does not meaningfully curtail the power of the BND at all. "The grand coalition hasn't even sharpened its knives," the network policy "Netzpolitik.org" wrote. "The secret service supervisors will in future still be dominated by what the services want to tell them - whenever it seems suitable to them ... at its core, the motto is 'keep going!' "
"Netzpolitik.org" argues that far from limiting the powers of the BND, the new law would actually expand them, because up till now it has only been allowed to track and eavesdrop single cable or wireless connections. In fact, the new law regulates the surveillance of whole telecommunications networks. "That should increase the extent of surveillance significantly," one constitutional jurist was quoted as saying.
Not only that, the activists argued, the draft bill effectively expands the number of reasons why the intelligence agency can practice surveillance to well beyond the typical "international terrorism" threat - to include all kinds of international crime. In short, the BND will be able to sift internet providers to counter any threats at all, both domestic and foreign, to protect Germany's "capabilities," and to gain any information of "foreign or security policy significance."