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Journalists speak out against Germany's BND bill

Ben KnightAugust 5, 2016

Germany is about to introduce an unprecedented law to regulate what the BND can and cannot do when spying abroad. Journalists' organizations say it must include protections for the press - as other German laws do.

BND satellite dishes

An international alliance of press freedom and human rights organizations has launched a campaign calling for Germany to alter a planned foreign surveillance bill to ensure that journalists are expressly protected. The new bill, which the Bundestag is expected to vote on in October, would give Germany's CIA equivalent, the Bundesnachrichtendienst (BND), too much leeway, they argued.

The petition was started by the NGO Reporters Without Borders (RSF), and is supported by Amnesty International, the European Federation of Journalists (EFJ), the European Centre for Press and Media Freedom (ECPMF), two major German journalists' unions, and several other pressure groups and media outlets.

According to the government, the purpose of the bill is to clarify the rules under which the BND can spy on people and share information with other intelligence agencies. But RSF says it will have the opposite effect, because Germany's domestic surveillance laws expressly protect "carriers of professional secrecy," such as journalists. RSF also says that previous, leaked drafts of this bill effectively did not make a distinction between German and non-German and non-EU journalists.

Berlin Reporters Without Borders protest
Reporters Without Borders launched their new campaign in the summer recessImage: picture-alliance/ZUMA Press/J. Scheunert

"Instead of clarifying issues, the federal government has completely abandoned the protection of foreign journalists and is poised to legalize measures that would constitute grave violations of two fundamental rights - freedom of expression and media freedom," RSF said in a statement in early July, when the bill was first debated in parliament.

New campaign, old debate

Inside Germany, surveillance either by the police or intelligence agencies, is regulated by strict laws - the police, for instance, need a judge's approval to eavesdrop on suspects. And the carriers of professional secrecy - that is, doctors, journalists, and priests - have the legal right to protect the privacy of their patients, sources and flock.

The alliance led by RSF effectively wants to see these restrictions transferred to foreign surveillance. But this would be unprecedented, as Hans-Christian Ströbele, Green Party Bundestag representative and member of the parliamentary committee that oversees the BND, pointed out.

"This is the first time it is being admitted in the law that this is even being done," he told DW. "And in this bill there is no regulation at all covering any protection for anyone, except the core of personal life - so if, say, a marital row is recorded, it has to be immediately erased."

In fact, if Germany were to explicitly protect foreign journalists from surveillance, it would be fairly unique in the world - the US and France set no such limits on their spies in the name of press freedom. "But we think we have to protest this in Germany, because compared to other countries, there was a much stronger discussion on the outcome of the NSA scandal," said RSF's Berlin director Christian Mihr. "In no other country affected by the scandal has there been such an intense discussion on the outcomes and consequences."

Frank-Walter Steinmeier at BND committee
Germany launched an inquiry following Edward Snowden's revelations about the BND's collusion with the NSAImage: picture-alliance/dpa/W.Kumm

Not only that, Mihr pointed out that Germany was one of the drivers of the United Nations resolution on the Right to Privacy in the Digital Age, adopted by the General Assembly in the wake of the NSA scandal in December 2013. "And Germany said that mass surveillance is a threat to basic freedoms - we see this as a contradiction," he said.

Defending the law

Burkhard Lischka, the Social Democrat (SPD) MP who helped draw up the new bill, said there was no need for any exemptions for journalists or doctors, because the BND is not, like the police, in the business of investigating crimes, but looking for security threats in advance.

"Strategic telecoms investigation is neither groundless 'mass surveillance' nor the targeted coverage of individuals. Both are expressly forbidden for the BND," he wrote in an article for SPD newspaper "Vorwärts." "This is much more a targeted early warning system - based on concrete search terms - that is principally aimed at threats from international terrorism, organized criminality, weapons proliferation, and armed conflict."

Andre Hahn
Andre Hahn said the bill will effectively suspend press rights protected elsewhere in German lawImage: picture alliance/dpa/L. Schulze

But other members of the parliament's BND oversight committee had a few objections. "There is in the draft law no limit whatsoever on the surveillance of non-EU foreigners," said the Left Party's Andre Hahn in a Bundestag debate in early July. "Here a door is clearly being opened to suspend press freedom and source protection."

Ströbele agreed - but his problems with the bill went much further. "The law is altogether problematic, because it legitimizes a practice that has been illegal up till now," he said. "But of course it also damages press freedom - and press freedom, according to the German constitution, is guaranteed for everyone - not just Germans."

"Of course what the campaigners have said is a completely justified demand, and I support them strongly," the Green Party veteran added. "But it's not enough for me - for me the law should include the line, 'we don't spy on each other in the EU, and the BND is not allowed to either.' After all, as the chancellor once said, friends don't spy on each other."