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«Compiled and edited by Simon Davies June 2014 A Crisis of accountability 2 Contents Contents Acknowledgments ...»

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A Crisis of accountability 41 The revelations also had an impact on the draft Data Protection Regulation being negotiated in the European Parliament. In particular, in the aftermath of the disclosures on the PRISM programme, Members of the Parliament proposed modifying the Data Protection Regulation in order to reinsert Article 42, the so-called “anti-FISA clause”. Safeguards had been included in an early draft of the Commission's proposal for data protection rules, which said that authorities in third countries could have access to EU data only if the transfer was covered by a specific legal agreement. These safeguards were deleted from the final version of the proposal published in January 2012 because of lobbying by US authorities. This article has been successfully reintroduced and adopted by the European Parliament last March under the new Article 43.a.

The European Court of Justice had to rule on a case on the legality of the data retention regime in the ten months following the Snowden revelations. It is impossible to assess if, or how much, this context may have influenced the Court. However, the outcome was a ruling which overturned an invasive surveillance measure and which cast several more such instruments and planned instruments into doubt.

The Snowden disclosures hit a nerve for many EU politicians, undermining trust in their Transatlantic cohorts. However, apart from the additional and limited safeguards in the Data Protection Regulation, the revelations have largely been limited to rhetoric on the challenges of preserving fundamental rights in the digital age. It remains to be seen whether these words can be translated into meaningful reform.

Correspondents: Joe McNamee and Raegan MacDonaldA Crisis of accountability 42

Germany The Snowden leaks entered the public sphere in the middle of the German electoral campaign and filled the news extensively for most of the summer and until late autumn 2013. The media impact was quite extraordinary considering the usual niche character of news with a digital dimension and put all acting politicians under pressure. However according to opinion polls conducted before the elections, the leaks were a minor concern for most citizens. [1] All private and public television channels, the biggest newspapers in both their print and online versions (Spiegel, FAZ, Sueddeutsche Zeitung, Zeit, ZDF, ARD, RTL, etc.) [2] reported vastly from summer until November 2014. Since January 2014 on, the German media regularly publishes editorial articles or news on political reactions to the Snowden leaks with a main focus on the US governmental actions and operational technicalities of the NSA programs.

The Spiegel is one of the few media outlets in possession of original leaked material worldwide. They are still examining undisclosed material along with the help of Jacob Appelbaum and Laura Poitras and their news is mainly focused on the technical aspects of diverse programs implemented by the NSA. On a smaller scale, media reported on the involvement of the German Intelligence Agency (BND). However, since May 2014 the focus on the nature and degree of cooperation between the BND and the NSA is becoming more present due to the commencement of duties of the committee of inquiry on the NSA at the German Federal Parliament (Bundestag) [3].

In autumn of 2013 the Freiheit statt Angst (freedom not fear) demonstration gathered between 10.000 and 15.000 people on the streets of Berlin. It was organised by multiple civil society organizations, but its impact was largely limited to circles attached to Internet issues. This demonstration was not the first of its kind, but was larger than the years before. [4] The demonstrations and the calls for petition signing did not have a significant impact. The most successful campaign was the petition to Chancellor Angela Merkel over change.org demanding a more adequate political response to the NSA-Leaks. It reached 75.000 signatures [5] A Crisis of accountability 43 The Bundestag established a committee of inquiry into the NSA on the 20th of March 2014. It started its work in April 2014 and has had one hearing session with specialist evidence in May 2014 [6] so far. The committee has been appointed for the 18th legislative session and is scheduled to run for approximately three years.

The federal prosecutor started an examination of the case on the 27th of June 2013 [7]. On the 4th of June the federal prosecutor announced the initiation of a preliminary investigation against persons unknown with regards to the tapping of Angela Merkel's mobile phone. Allegations on massive surveillance against the German population are still under examination [8].

Additionally a politician of the Pirate Party in Bavaria (Marcus Dinglreiter) presented a criminal complaint that was dismissed by the Regional Prosecutors of Bamberg and Coburg for judicial reasons. Since the prosecutors had tried to close the case without sufficient investigation of the facts, Mr. Dinglreiter was able to turn the matter into a forced complaint procedure. The Regional Prosecutor of Bamberg (Bavaria) is now responsible for investigating the case on the basis of strong suspicion [9].

Also, the Chaos Computer Club filed on the 3rd of February 2013, a criminal complaint with the Federal Prosecutor General's office. No outcomes or official statements have appeared since then [10].

The German chancellor appointed after the elections, an additional state secretary to account exclusively for the secret services. The Ministry of Interior and the Ministry of Economic affairs and Energy also presented a joint progress report in August 2013 with a list of measures for better protection of the private sphere. [11] Part of the measures consist of international talks with the US or the European partners concentrated on issues such as the European data protection regulation and the UN International Covenant on Civil and Political Rights. However, national intelligence agencies are specifically excluded both in European data protection regulations and also in the Covenant.





According to the report, the German BND is in talks with other EU intelligence agencies and is drafting cooperation standards. No further information on this issue has been published since August 2013.

The administrative agreements made 1968/1969 on the G-10 Laws regulating German intelligence agencies and the cooperation between the US, France and the UK with respect to the privacy of correspondence, posts and telecommunications have been annulled. But according to the former Minister of the Chancellery, the cooperation between the NSA and the BND was made on the basis of a secret Memorandum of Agreement from 28. April 2002. [12] In addition, a new IT Security Law had been foreseen before the Snowden revelations, but it had been strongly resisted on economic grounds due to A Crisis of accountability 44 provisions on a proposed obligation to report security incidents. The progress report announced a new drafting proposal as one of the measures for better privacy protection against global threats. The draft is finished and under governmental consultation [13]. This legal initiative originated a new narrative within the German private sector, driving new business model concepts based

- among other ideas - on national or regional routing.

A new addendum to the government procurement laws was announced in May. According to several interviews, [14] the law amendment is designed to ease the burden of proof in favour of the German government towards nonGerman companies. One key outcome is that the transmission of industrial and business secrets to third parties may lead to a contract annulment in case of discovery through reliability testing. While this would certainly be a measure that aims to provide for more transparency, it does not necessarily equate that all contracts with non-German companies will be cancelled if transmission to third parties is disclosed. The annulment would depend on consideration by the German government.

Civil society organisations like Reporters Without Borders Germany, Human Rights Watch, Whistleblower Netzwerk, Digitale Gesellschaft and others have repeatedly asked the German government and parliament to step up its investigation into the case, esp. citing a lack of transparency. This was the case for the issue of asylum for Snowden with an interlinked possible hearing by the parliamentary inquiry committee as well as questions on the extent to which civil society organisations have been monitored and what the government plans to do about this. Until now, there have been no official answers by the government. [15] To our knowledge, most industry associations have been quiet; organisations like eco (Internet-Industry) have no public statements or position papers on their website, while big companies like Deutsche Telekom and 1&1 Internet AG attempt to profit from the NSA Scandal through programs like national routing and "E-Mail Made in Germany". "The NSA-Scandal comes in handy, we should embrace it as a chance [for the German economy” said Markus Kerber, from Germanys biggest industry association (BDI). [15b] Some smaller E-Mail providers like posteo.de issued transparency reports on government data requests (the first of such kind in Germany) which then triggered Deutsche Telekom to follow suit. No coordinated effort to reform which data can be shared as a result of intelligence requests has been seen so far. [16] _____ [1] cf. the graphics of Infrastest made during the German electoral campaign (in German) bit.ly/1twVFC8

–  –  –

[3] For more information visit the homepage of the committee (in German) www.bundestag.de/bundestag/ausschuesse18/ua/1untersuchungsausschuss [4] Here some press reports:

http://www.google.com/url?q=http%3A%2F%2Fwww.spiegel.de%2Fnetzwelt %2Fnetzpolitik%2Ffreiheit-statt-angst-2013-demonstration-gegen-nsaueberwachung-ahtml&sa=D&sntz=1&usg=AFQjCNEaEA99fzZ7XfISOOJlxmrGqsJ59w [5] The change.org petition can be found here (in German):

www.change.org/de/Petitionen/bundeskanzlerin-angela-merkelangemessene-reaktion-auf-die-nsa-aff%C3%A4re [6] The reports of the three experts on the first hearing session can be read

here (in German):

www.bundestag.de/bundestag/ausschuesse18/ua/1untersuchungsausschuss/

-/280848 [7] Press report (in German): www.sueddeutsche.de/politik/spaehaffaerenbundesanwaltschaft-soll-verfahren-wegen-spionage-pruefen-1.1738018 [8] cf. (in German) www.mz-web.de/politik/bundesanwaltschaft-prueftermittlungen-zur-nsa-affaere,20642162,23903482.html and www.aljazeera.com/news/europe/2014/06/germany-probe-merkel-phonebugging-201464123350342688.html [9] see the press release at of Mr. Dinglreiter (in German) piratenparteibayern.de/2013/09/27/pirat-sorgt-fuer-ermittlungsverfahren-im-nsa-skandal/ [10] Press release of the CCC ccc.de/de/updates/2014/complaint and http://www.racf.de/PM%20Strafanzeige%20NSA.3.2.14.pdf [11] Read the progress report (in German) here:

www.bmwi.de/BMWi/Redaktion/PDF/S-T/massnahmen-fuer-einen-besserenschutz-derprivatsphaere,property=pdf,bereich=bmwi2012,sprache=de,rwb=true.pdf [12] Read the press statement of former Minister of the Chancellery Pofalla (in

German):

www.bundesregierung.de/ContentArchiv/DE/Archiv17/Mitschrift/Pressekonfer enzen/2013/08/2013-08-12-pofalla.html [13] For the draft visit (in German) www.bmi.bund.de/DE/Nachrichten/Dossiers/ITSicherheit/itsicherheit_node.ht ml#a-info-1 and for more on the official position of the German Government on the draft of the new IT-Security Law see e.g. the speech of the vicepresident of the BSI (German Agency for Security and Information Technique), Andreas Koennen, (in German): www.teletask.de/archive/lecture/overview/7774/ A Crisis of accountability 46 [14] cf. www.egovernment-computing.de/commerce/articles/446309/ [15] https://www.reporter-ohnegrenzen.de/nc/pressemitteilungen/meldung/keine-aufklaerung-ohnetransparenz/ and https://www.reporter-ohnegrenzen.de/nc/pressemitteilungen/meldung/offener-brief-an-diebundeskanzlerin-zur-sicherheit-edward-snowdens-in-deutschland/ and https://www.reporter-ohne-grenzen.de/themen/kampagnen/whistles-forwhistleblowers/ [15b] http://www.faz.net/aktuell/feuilleton/it-sicherheitsgipfel-die-nsa-affaerekam-wie-gerufen-12765364.html [16] c.f.

Transparency reports:

https://posteo.de/site/transparenzbericht_2013 and http://www.telekom.com/sicherheitsbehoerden

–  –  –

Ireland The Edward Snowden revelations have had little impact in Ireland, despite the fact that Dublin is home to European headquarters of many of the Internet firms targeted by the NSA and GCHQ [1]. While there has been extensive media coverage, there has been no concrete action by the Irish government or parliament to investigate the abuses and the Data Protection Commissioner has refused to examine disclosure of information by Facebook under the PRISM programme [2]. To the contrary, the government has signaled its willingness to assist the US government in the extradition of Mr.

Snowden [3]. The response of the Irish government has been marked by an unwillingness to antagonise the United States, rather than any desire to protect the privacy of Irish citizens.

Media reporting

For the most part, Irish media coverage has been confined to reporting and commenting on material revealed elsewhere. There does not appear to have been any investigative journalism considering, for example, the possible involvement of Irish authorities, the role of subsidiaries of US firms or the extent to which Irish undersea cables might have been tapped. With some honourable exceptions [4], there has been little media interest even examining the response of the Irish government.

Public action There have been no large-scale demonstrations or online campaigns against US surveillance.

Cases before courts and other authorities On 4 July 2013 the Irish Attorney General, acting on a request made by the US government, sought a pre-emptive extradition arrest warrant against Mr.

Snowden before the High Court [5]. When that warrant was refused by the court (on the basis that the location of the alleged offences had not been

established), the Minister for Justice went on to say that:

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