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Germany reforms its intelligence service

Jefferson Chase
October 21, 2016

The German parliament has subjected the country's intelligence service, the BND, to increased government scrutiny. But critics object that it also gives the BND wide-ranging new powers to spy on foreign nationals.

Zentrale des Bundesnachrichtendienstes (BND)
Image: picture-alliance/dpa/J. Carstensen

Germany's lower house of parliament, the Bundestag, has passed a comprehensive reform of the country's main intelligence service, the BND. The new legislation strengthens government monitoring of intelligence activities while explicitly allowing the BND to carry out certain types of surveillance activities. 

The reform comes in the wake of the 2013 revelations by American whistleblower Edward Snowden that a number of national intelligence services, including the BND, had spied on behalf of the US National Security Agency (NSA) and that the NSA had spied on its allies. That prompted the formation of a German parliamentary committee to draft intelligence agency reforms.

The new legislation subjects the BND to monitoring by an "independent panel" of two judges and a federal prosecutor and a "permanent commissioner" from the Interior Ministry. It stipulates that surveillance of international communications networks must be authorized by the Chancellor's Office rather than by the BND itself and explicitly prohibits economic and industrial espionage.

The new laws also provide for better protection for whistleblowers within intelligence services and subjects the BND to annual public hearings instead of private ones, as has been the case.

New York Pardon Snowden Kampagne Videoschalte
Snowden's information unleashed a debate about the BND in GermanyImage: Reuters/B. McDermid

Explicit permissions

The reforms also explicitly allow the BND to direct espionage operations at EU institutions and other EU member states, if they are aimed at gathering "information of significance for [Germany's] foreign policy and security."

The reform also permits the BND to cooperate with foreign intelligence services like the NSA if it serves specific purposes, including fighting terrorism, supporting the German military on foreign missions or collecting information concerning the safety of Germans abroad.

The legislation was passed with the votes of the governing Conservative-Social Democratic coalition, which said that the reforms address the concerns raised by the Snowden leaks while allowing the BND to use 20th century means to ensure Germany's security.

"How else is the BND supposed to protect us against terrorism other than listening in on conversations between people outside of Germany?" said Clemens Binninger of Chancellor Angela Merkel's Christian Democratic Union, the chairman of the Bundestag's NSA parliamentary committee.

Extra-legal spaces?

Symbolbild NSA Spähaffäre
The BND is still allowed to do wide-ranging Internet surveillanceImage: Reuters

The opposition Left Party and the Greens voted against the legislation, saying that instead of reining in the BND it rewards the German intelligence service with new powers and will lead to the infringement of the rights of people outside Germany.

Binninger disputed that interpretation.

"To say that we now allow something that used to be forbidden is in my view almost intellectually dishonest," Binninger told DW after the Bundestag vote.

Green Party spokesman for Internet policy Konstantin von Notz called the legislation unconstitutional and predicted that it would be rejected by Germany's highest court.

"Three years after Snowden, and after three years of the parliamentary committee, the grand coalition has delivered nothing to improve protection of people's rights on the internet," Notz told Deutsche Welle. "Constitutional experts, UN human rights specialists, Reporters Without Borders, German public television, and many people who have intensively investigated the topic say that this is an unconstitutional law. The intelligence services treat the Internet as an extra-legal space. That's unconstitutional."

Notz added that the reform violated Article 10 of the German constitution, which guarantees the privacy of communication, and that ninety percent of surveillance operations had nothing to do with terrorism.

"The law will only lead to the further discrediting of the BND," Notz said.  "The politicians always pass on responsibility to the intelligence service, although the politicians are the ones responsible."

Symbolbild NSA Spionageaffäre
Critics say that laws legitimize illicit surveillanceImage: picture-alliance/dpa

A "free pass" for intrusion

There is also no shortage of opposition to the reforms outside the German parliament, either.

The free-market liberal Free Democratic Party (FDP), the conservatives' former coalition partners who are no longer in the Bundestag, say they are looking to challenge the legislation in court.

Former Justice Minister Sabine Leutheusser-Schnarrenberger tweeted, "Unconstitutional BND law: I'm consulting with my colleagues at the FDP what a lawsuit might look like."

Amnesty International also has little good to say about the new laws.

"The reform violates people's human rights," Amnesty's Lena Rohrbach told DW. "It's nothing but a free pass to intrude into people's private spheres."

German media were also quite skeptical.

"It would be a limitless understatement to say the BND has gotten off lightly," wrote the daily "Süddeutsche Zeitung." "The new laws simply legalize a lot of what the BND has done thus far without a clear legal basis."

News magazine "Der Spiegel" concurred that the reform represents an attempt to close the book on the Snowden revelations.

"There can be debate about the strengths and weaknesses of the legislation, but not about its symbolic effect," wrote Spiegel. "The BND reform is like the government drawing a line through the spying affair, and Germany's shameful role in it is simultaneously cleared away."