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Cybersecurity & Standards, European Policy, Government Surveillance

NSA spies on German Chancellor’s cell phone. What now?

The following is a guest post by Dr. Axel Spies, a German lawyer with Bingham McCutchen LLP in Washington, DC. He advises domestic and international clients on various international issues, including licensing, competition, corporate issues and new technologies such as Cloud Computing in the European markets.

The popular German legal Beck-Blog recently hosted a rather lively discussion whether there are legal ways and means to challenge the alleged spying by the U.S. National Security Agency (NSA) on German Chancellor Angela Merkel. The measures discussed are presented below and a short conclusion follows, as far as this is currently already possible.

The German version of this article is published in the November issue of ZD-Aktuell (Zeitschrift für Datenschutz, German legal journal on data protection).

1) Action before the International Court of Justice against the United States?

Such a measure was considered by the Beck Blog participants as unlikely and cumbersome. Possible sources of law mentioned in the Blog entries were “Article 12 Declaration of Human Rights” and “Article 17 ICCPR.” A Blog participant argued that these monitoring activities are covered by international law. He also asked to what extent criminal investigations or security measures could effectively be excluded through international obligations of Germany, for example from the Supplementary Agreement to the NATO Status of Forces Agreement. The legal possibilities of a German Parliamentary Committee to investigate the events are rather limited. The German daily, “DerTagesspiegel remained skeptical: “The focus of the Committee is still unclear. Nobody seriously believes that any U.S.-government official could be summoned so easily. The former NSA– expert and whistle blower Edward Snowden has rejected his appearance in Germany out of concern for his own safety in other cases.” However, whether it comes to a binding international E.U. / U.S. “No Spy” Agreement, is currently cast in doubt. Judging by an ABC News interview with the U.S. President, the outcry in Germany over the spying could lead to a ban issued by the Obama administration against “spying on the leaders of American allies” at least for the future.

2) Criminal investigations by the German Attorney General (Bundesanwaltschaft)?

As one Blog participant noted, criminal investigations could be initiated on the suspicion of espionage under Sec. 202a StGB (German Criminal Code). Criminal law expert and professor Henning Ernst Müller pointed in his Blog entry at an interview with his colleague Safferling that where actual government agencies have been monitored, state security offenses could be relevant when it comes to “state secrets” within the meaning of Sec. 93 StGB. The charges could include treason according to Sec. 94 StGB, the revelation of state secrets infringing with Sec. 95 StGB or revealing espionage and divulging state secrets pursuant to Secs. 96 and 97 StGB. However, state secrets are only those findings that need to be kept secret in order to avert “a serious disadvantage for the external security of the Federal Republic of Germany” as it is stated in the legal definition. If the information is not considered a “state secret,” but pertains to other confidential data and events, the interception of Chancellor Merkel’s communication may be a criminal intelligence agent activity according to Sec. 99 StGB. According to the same article, two Russian agents were recently sentenced by the OLG Stuttgart (Higher Regional Court of Stuttgart). The OLG Stuttgart imposed six and a half and five and a half years in prison on the couple. One Blog participant summed up this sentence as follows: “The ‘secret service agent activity’ weighs heavily as the crime had resulted in a significant loss of sovereignty for Germany… With the sentence, the Court also wanted to make clear that agent activities threatened high penalties.”

There may be investigations, but a prosecution as an outcome is unlikely according to Blog participants. The German prosecutors will be unable to hold individuals responsible for acts committed abroad. They may also apply their discretion according to Sec. 153 StPO (Code of Criminal Procedure) that offers room for political considerations against a prosecution if the perpetrators are located out of Germany. It would also be possible for the U.S. to recall a U.S. diplomat who is suspected of espionage – especially if it turns out that Chancellor Merkel has actually been spied upon from the premises of the U.S. Embassy in Berlin. This would require, as another Blog participant noted, the naming and shaming of these individuals, and this in turn calls for effective counterintelligence from the German side, which does not exist at the moment vis-à-vis the United States.

3) Suspension of EU / U.S. Safe Harbor?

The Safe-Harbor-Agreement between the E.U. / EEA and the U.S. came into existence in 2000. It covers the transfer of personal data for U.S. companies that have committed themselves to comply with the so-called EU / US Safe Harbor Principles to keep the data safe. The U.S. Department of Commerce keeps a public list of Harborees. There was broad consensus in the Blog that a suspension by Germany would legally be difficult to support. If anything, the competence for such measures lies in Brussels, and not with the Federal government or the German data protection authorities. The European Commission intends to renegotiate the U.S./E.U. Safe Harbor Agreement to improve the level of protection of personal data of Europeans, but there is no precise timetable. Rather likely as countermeasures is a spike in privacy audits of U.S. companies based in Germany. As a Blog participant emphasized, another difficulty coming into play is that E.U. Member States, as well as the European Commission, will be cautious about imposing sanctions of any kind against the United States, as European intelligence agencies themselves have benefited from the various findings of the spying and are also strongly involved in those activities.

4) Suspension of the SWIFT agreement to transfer data to the U.S.?

Such suspension is highly desired by the E.U. Parliament, but it would negatively affect the E.U.’s own efforts of tracking terrorists, as the investigating authorities in the E.U. benefit significantly from the findings of the NSA via SWIFT (account transactions, account holders).

5) Suspension of the implementation of FATCA?

A more likely remedy is the suspension of talks between the Federal Ministry of Finance (BMF) – along with Britain, France, Italy and Spain – with the United States to implement FATCA (the U.S. law for the detection of an international tax fraud – Foreign Account Tax Compliance Act). The Joint Declaration on this intergovernmental approach was initialed on February 22, 2013. The corresponding implementation act, which provided for a statutory authorization for the BMF in a new Sec. 117c German Tax Code (AO), was saddled up on the AIFM tax as a “piggyback law” and adopted by the Bundestag (Lower House) on March 16, 2013. At the moment, the bill is with the Mediation Committee. Further details of FATCA from a data protection point of view and consent of those affected by German law are provided by Hanloser, ZD, 2013, 542 et. seq.

6) Summary of Current Considerations

Most Blog participants were more pessimistic about the legal remedies having any leverage against spying. To quote a key statement in the Blog: “What Germany can “legally” do against wiretapping is likely to be on a similar level as asking what Pakistan can do ” legally” against U.S. drone attacks on its territory. Politically, maybe some counteraction in the areas of punitive tariffs on imports from the U.S. or the termination of international treaties is conceivable, but this is less a question of being allowed, rather than being able to follow through with sanctions and thus hardly the subject of a legal discussion.” Müller further added this observation: “If there were an effective counter-espionage [in Germany], also against supposed “friends” [in the U.S.], then it would hardly be possible to spy on the head of a befriended government’s private and political communication.”