NSA affair: committee calls intelligence witnesses

When an intelligence service is monitoring telecommuncations, how does it tell whether such communications have to do with Germans or foreigners? The question may sound far-fetched or trivial, but it is neither. It concerns fundamental questions of data privacy and personal rights. This, and other questions are being taken up by the NSA investigative committee, which the Bundestag formed in the wake of whistleblower Edward Snowden's revelations.

According to recent media reports, the German Federal Intelligence Agency (BND) allegedly illegally shared German citizens' private data with the National Security Agency (NSA). The sharing of legally-obtained data is only permitted under strict conditions. In a general sense, it is permissible when it constitutes a threat to the democratic order. All potential terrorist threats - primarily Islamist - fall in this category.

Nothing proceeds theoretically without G-10 commission consent

Massive encroachments on fundamental rights such as those guaranteed in article 10 of the constitution [Privacy of correspondence, posts and telecommunications] should be the absolute exception, despite all risks and dangers. For this reason, the so-called G-10 is keeping guard to ensure compliance with these fundamental rights. Without consent of this panel, no German intelligence service can implement surveillance measures. The supervisory authority extends also to the entire process of collecting, using, and processing of data. The NSA investigative committee must grapple with this broad sphere.

The witnesses the BND called on Thursday were therefore especially interesting for the parliamentarians, namely the data protection officer of the German Federal Intelligence Agency. The government director has held her office for two and a half years. She noticed quickly that there was a lax attitude toward data privacy in the agency. This was apparently the case as compulsory security protocols were never introduced during the establishment of two databases with partial personnel-specific information. In other words: The BND data protection officer was not informed in a timely manner by the appropriate BND employees to check the data protection aspects of the program before commissioning it.

BND Chief has a different understanding of the law

Since the databases in question have an close NSA connection, the opposition Greens and the Left believe it is hardly a coincidence that there was no prior vetting. The BND data protection officer emphasized however, that despite this failure, it could not automatically be assumed that the data would be used in such a way as to violate privacy rights. The opposite is not guaranteed as well. "I suspect, that it was ignorance," the witness said. With the training she initiated, the BND data security director - according to her own claims - urged a more sensitive handling of information obtained through surveillance.

The members of the NSA investigative committee pricked up their ears, when the fully qualified attorney spoke of her understanding of the law as regards the controversial BND surveillance station in Bad Aibling. She is firmly convinced that all data that the BND collects there with satellites is legal. Whether the phone that was monitored was in Germany or in Afghanistan, and who was on the other end of the line, should not play a role in the handling of the acquired data, according to the data protection officer.

Foreign Minister Steinmeier also to be called as a witness

The leadership of her agency sees it differently, the witness said. Data streams from abroad, in the judgement of BND President Gerhard Schindler, fall outside the scope of the BND constitution, the data protection officer added. One must ask Schindler himself how he came to that conclusion. Before Schindler is called as a witness, his predecessor must be questioned. On November 13, August Hanning is scheduled to testify. He was in office from 1998 to 2005 when the Social Democrats and the Greens ruled.

The terror attacks of September 11, 2001 occurred during this time. At the time Chancellor Gerhard Schröder (SPD) assured the Americans of "absolute solidarity." A part of this promise was a much closer cooperation of the intelligence agencies that in large part still continues today. For many in Berlin - not only in the ranks of the opposition - this cooperation is going too far. What the BND and NSA agreed to at the start of the millennium, the investigative committee wants to learn from German foreign minister Frank-Walter Steinmeier at a later date. At the time he was intelligence agency coordinator in the Chancellery.