Computers, Privacy & the Constitution

about:black - The NSA-investigation committee in the German parliament

-- By AliceBertram - 13 Feb 2015

Investigating the German secret service

Even though the investigation committee set up unanimously by the German parliament in March 2014 is titled "NSA", the nominal main focus lay from its very beginning on investigating the German Federal Intelligence Service (Bundesnachrichtendienst = BND). Public discourse suspected the BND to use mass surveillance which is illegal because they lack a specific initial suspicion, see sections 152, 160 of the Criminal Procedure Code . The pressure stemming from these suspicions was evidently high enough to unite the parliament in this question despite the government's interest in upholding good German-American relations. By demonstrating their will to examine possible infringements, the governing faction could at least temporarily restore their voters' faith in its integrity.

Though doubting the German Federal Intelligence was somehow more morally intact than other Intelligence Services had little factual grounds, many Germans seemed to hope the investigation committee would prove just that.

Turning to the NSA for help in investigations

In the first attempt of clarifying matters, the committee turned to the NSA officials. High-ranking officers were invited as witnesses and documentation was requested. In response, Keith Alexander, who served as the Director of the NSA until March 2014, stated that the NSA possesses data from German citizens but would always only use the data according to German law. However, Edward Snowden's revelations about the chancellor's mobile phone having been tapped by the NSA for more than ten years blatantly contradicted Alexander's assurances.

Useless written evidence provided by the BND

The BND seemed much more supportive of the investigations. It handed over any witness or document requested by the committee, even documents labeled "highly confidential". But before the Members in the committee could view the documentation, the chancellery revised the evidence as it's administrative set up includes supervising the BND. The Member of Parliament and Member in the investigation committee, Hans-Christian Ströble, described in an interview in what the documentation looked like when given to the committee:

Dear [blackened],

[paragraph blackened]

[paragraph blackened]

[paragraph blackened]

Sincerely [blackened].

Sometimes not the entire document but only paragraphs or pages were rendered unreadable. Considering that written evidence for the committee adds up to more than a thousand folders by now, it becomes feasible to which lengths the chancellery is going to limit the investigation committee's findings.

Witnesses and Experts: Does the BND infringe the citizen's rights?

As little can be learned from written evidence, questioning witnesses and experts is essential. Most of the examinations are open to the public. The witnesses appear using only their initials and are questioned about the decisive question how broad mass-surveillance without initial suspicion is being practiced. However, also here, the representatives of the chancellory intervene often by cutting off the witnesses on the grounds that the topic would touch too deeply on foreign interests of the government - if the witness themselves have not already refused to answer because it "exceeded their permit from the BND authorities" which only allows them to be interviewed about certain enumerated topics.

Issues which have been discussed in the committee with witnesses and experts were the data-hub in Frankfurt (Main) which the BND undisputedly tabbed and passes the there accumulated data on to the NSA or the "strategic surveillance" referring to the BND monitoring data transported via satellite from its quarters in Bad Aibling.

Filtering Data - can the filter protecting citizens' rights even be programmed?

To be in line with German data protection law, data from German citizens must be filtered from the data which is saved or passed on. Thus one of the question which the committee is currently working on is finding out, whether it is even technically possible to filter the data as precisely as the legal standard requires. Indices can be the phone code +49 or the domain .de. But clearly German citizens do not restrict themselves to use German phone numbers and domains. Efficiently ruling out that German citizens are spied on seems, from what witnesses and experts have stated to this point, hardly plausible.

Trade off between secret services

A bigger question the committee seeks to answer would have world-wide implications: Do secret services trade the data about other than their domestic citizens with other secret services to obtain data about the citizens whom they are not allowed to listen to directly? The likelihood seems to be rather high that this is happening. With communication being transmitted internationally, the "other" intelligence service would not even have to tap wires in the country which seeks to learn more about its citizens but could listen at a more convenient venue and then swap to obtain information yet "missing" about their own citizens in turn.

The committee has found that the BND collects vast data throughout the European Union and also Afghanistan. The BND should that be an internationally appreciated partner in trade.

Conclusions

Heaps of blackened material analyzed in the investigation committee really prove only one thing: A investigation committee whose majority is composed of the same parties backing the chancellor is unlikely to make any progress given all evidence and many witnesses have to be approved by the chancellery. Although the opposition is working hard to achieve the committee’s nominal objective, it is unlikely to succeed. Rather, the "NSA" investigation committee proves to be a full success for the government; torn between openly admitting to mass surveillance and taking a public stance against it, the investigation committee is a beautiful option to not commit to either, to pursue Angela Merkel’s long-standing policy of apathetic adjustment to political reality to wait it out and pacify the electorate. Setting up the investigation committee calmed the public as it suggested that "something" was being done about the NSA scandal - something to recover to the blissful feeling to not being listened to when communicating over technological devices. At the same time, the investigation committee allowed the government to continue their secret service activities as well as their amicable relationship with the United States. Because the investigation committee has operate over such a long time frame, the public’s interest and media coverage has subsided to barely recognizable minimum. It would be thrilling to see this strategy turn on the government, for instance if a good rhetorician could explain the technological possibilities and realities as a witness in the committee at best causing a public outcry about the international governments’ practices. Sadly, this is highly unlikely to happen as the petty dispute about hearing Edward Snowden as a witness has shown. Most likely the investigation committee will silently cease to exist once the Parliament’s turn is over in Fall 2017.

At best, Germany will fail to enact permanent authorization for the services to do whatever the fuck they want, in the Franco-British form. At worst, Thomas de Mezière will get for the services the same deal they're getting in the other "major" European powers. And no one wants to offend the Americans about this right now.

So once again, the issue this draft doesn't come to grips with and the next one should is, what's the point? Surely it isn't whether a parliamentary investigation is going to "succeed." Let's focus the draft on the actual issue, whatever it is.

To improve the essay, I tried to frame it. Revising the text, I found that beginning already pointed sufficienty towards the issue (the government’s "easy way out"), so I decided to leave it mostly unaltered and to add a new conclusion. In the Conclusion, I connect the findings of the text to paint the bigger picture.

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r7 - 26 Jun 2015 - 19:41:00 - MarkDrake
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