“Wer Grundrechte einschränkt, ist beweispflichtig.”

“Anyone limiting fundamental rights must provide proof.”

From former federal data protection officer Peter Schaar’s blog post just before the European Court of Justice announced its groundbreaking, wonderful and “remarkably clear” decision on 08 Apr 2014 overturning mandatory dragnet data surveillance because it violates fundamental human rights [Grundrechte].

“Anyone limiting fundamental rights must provide proof. They must provide evidence that the limitations to personal freedom are necessary in the predominant interest of the general public—that’s what our constitution requires. This principle also applies in the European Union, at the latest since 2009 when the E.U. Charter of Fundamental Rights became enforceable law of the Member States with the Treaty of Lisbon. This guideline’s origins go back before Lisbon. In December 2013, the attorney general at the European Court of Justice said in his vote that he was of the opinion that the guideline violated the protection of the private sphere guaranteed in Article 8 of the Charter of Fundamental Rights.

“The authors and proponents of the mandatory retention of communications traffic data [Vorratsdatenspeicherung] have not yet provided proof of the necessity and efficacy, to this day. But surely it would have been easy for them to provide the evidence, after eight years—if their arguments were accurate ones. It ought to have been easy to show that law enforcement had been harmed by the German Constitutional Court’s finding in 2010 that the Vorratsdatenspeicherung law was unconstitutional. Did conviction rates fall in Germany? Is Germany worse off than its neighbors who implemented Vorratsdatenspeicherung? No. Furthermore, neither the governments of the Member States nor the European Commission were able to provide conclusive proof in any other way for the necessity of Vorratsdatenspeicherung.”

(Vair   GROONED rechh tah   eye n shrenked,   issed   bev ICE flichh tichh.)

Die Verharmloser

“The harmlessers.” Pejorative hurled in June 2013 at ruling-coalition German politicians who said the U.S.A.’s spying on domestic and international emails, phone calls, video chats, text chats and search histories, in addition to snail mail, in-house company computer networks, the ubiquitous traffic and security cameras in public spaces, and even medical, financial and toll records, is okay with them. Even if this data was used to track and kill people via extralegal drone assassination.

German media have also said the ruling coalition is “talking the N.S.A. problem small,” “veiling” and “down-moderating” it, using “placating” and “appeasing” language to angry voters, especially but not exclusively before the Bundestag election on 22 Sep 2013. Data protection officers remain unappeased, vociferously warning about these issues at their national meetings. Bundespräsident Joachim Gauck invited federal data protection officer Peter Schaar to discuss the problem and its implications at the presidential palace of Bellevue on 06 Sep 2013.

Spiegel.de reminds us the imbroglio includes tapping international fiber optic cables, forcing companies to give up their customers’ data, commissioning back doors in software and hardware advertised as secure and the N.S.A. and G.C.H.Q.’s ability to use brute computing force to break encryption. Presumably satellite communications aren’t immune either.

U.S. government intelligence agencies are also spreading this behavior around the world like an antidemocratic virus to friends, neutrals and foes alike as they share technology and illicitly-gathered information with allied intelligence agencies, pay telecoms and cable companies to codevelop snoop technology and render services and outsource much of their own sensitive work to private-sector companies. Non-allied countries will feel forced to invest in similar strategies as well. Companies are being perfectly reasonable if they decide to sell to everybody. Ignoring even light regulation sets a poor example and paves the way for disaster under bad leadership, anywhere in the world.

(Dee   feh HOM loze ah.)

“Intelligente Stromzähler nur mit intelligentem Datenschutz”

“Intelligent electricity counters,” so-called smart meters, but “only with intelligent data protection.” German data protection officer Peter Schaar (his official title is Federal Commissioner for Data Protection and Freedom of Information) praised some recent developments on the data protection front but criticized weaknesses remaining in protecting e.g. employee data and the data that can be gleaned from smart meters. Schaar has been warning against excessive technology-driven transparency of electricity consumers since at least 2011. His office produced a pro-consumer guideline in 2012 to supplement the 2011 Energiewirtschaftsgesetz (Energy Industry Act) amendments that enabled the smart meters which the smart grid will need for flexible management of renewable energy sources and which so-called “smart customers” are to be able to use to manage their own utility consumption. The guideline points are to flow into law eventually.

(In TELL ee GENT ah   SHTROAM tsay lah  noor   mitt   in TELL ee GENT em   DOT en SHOOTZ.)

Verfassungsschutz

“Constitution Protection.” The name for a federal German police agency that has state branches. I don’t know much about it. The name might be intended to convey the idea that federal police are needed to keep a democracy from falling into dictatorship.

Wikipedia says the Verfassungsschutz offices are responsible for domestic intelligence, the Bundesnachrichtendienst for foreign intelligence, and the Militärischer Abschirmdienst for military intelligence.

The Süddeutsche Zeitung said federal Verfassungsschutz is responsible for defending Germany against spying.

Update on 28 August 2012: Interior Minister Hans-Peter Friedrich (CSU) has announced that he would like to reform the Verfassungsschutz, including a mandate that all state-level Verfassungsschutz organizations would have to send all their information to a central federal office (some state offices have already protested this) and that a central federal list be kept of all Verfassungsschutzmänner and -frauen who are providing information to these police in return for money. See V-Mann, V-Frau.

Update on 29 August 2012: The state and federal reps supposedly only discussed for one hour before agreeing on a framework for reform, which even the opposition SPD party now supports. Not only will state Verfassungsschutz offices be required to share all information with the federal office, but the federal office will be required to share all information with state offices as well (there are currently a total of 17 Verfassungsschutz offices). The state reps negotiated away Hans-Peter Friedrich’s proposal that the federal office be made the sole boss of  investigations of (potentially) violent groups. Angela Merkel’s libertarianesque coalition partner, the FDP, criticizes that these changes are just moving furniture around and the old system, with its redundancies, remains the same.

Update on 03 July 2013: Interior Minister Hans-Peter Friedrich (CSU) and the head of federal Verfassungsschutz, Hans-Georg Maaßen, announced the Verfassungsschutz agencies will undergo fundamental reforms of structures and procedures, imposing uniform standards on the state and federal offices. The changes are to include: new guidelines for the use of V-people (“persons who have committed the most serious crimes are not to be acquirable as V-people” —Maaßen; informants are no longer to receive fees high enough that they could live on that income alone; handlers are to be swapped every five years at the latest to prevent friendships and Seilschaften; and a central file of state and federal V-people is to be created e.g. to prevent multiple Verfassungsschutz offices from paying the same informant); new rules for working with state Verfassungsschutz agencies (which will have to send the knowledge they acquire in unfiltered form to the federal office) and in future files are only to be destroyed after multiple-step reviews (with destruction training and a “file destruction officer” appointed for each department). “Cross-thinkers” [Querdenker] in the offices are supposed to observe, question and criticize what they see, hopefully spotting real trends and catching when departments are on wrong or slow tracks. These initial reforms are said to be in response to the failures discovered in the investigations of Germany’s decade-long serial-killing bank-robbing neonazi terror cell, not to the revelations of whistleblower Edward Snowden. Because there is a German election in two months it’s possible these announced reforms will not be enacted and/or funded, as has apparently been the case with some of Health Minister Daniel Bahr (FDP)’s pre-election reform announcements. The opposition criticized them as purely cosmetic and piecemeal anyway. Thomas Oppermann (SPD) called for a mentality change at these agencies and training employees so that they “have a sense of where the real dangers to our democracy lurk.” Hans-Christian Ströbele (Green party) said Verfassungsschutz should be eliminated “such as it is. We can’t let people just continue on who failed like that.”

Update on 19 Sep 2013: A state Verfassungsschutz office (Lower Saxony’s) was caught collecting and keeping information on at least seven journalists. Federal-level Verfassungsschutz was also caught cooperating with the C.I.A. and the Bundesnachrichtendienst to spy on a journalist, though Hans-Georg Maaßen issued a denial; the NDR journalist‘s name, passport number, mobile phone number and date of birth were on a U.S. list of names and data given to the German domestic and foreign intelligence agencies in 2010 with a request for more information about those people.

These reports showed that the German domestic intelligence Verfassungsschutz (state and federal) and foreign intelligence Bundenachrichtendienst agencies are supplying information for databases (now including ones named “Project 6,” “P6” and/or “PX”) that should have been inspected by data protection officers and subject to German data protection rules regulating among other things what information they can contain and for how long, after which the data must be deleted. However, the German data protection officers did not know about these databases, said Peter Schaar. He said this is no minor infraction, and “anyone running such a project absolutely must guarantee that all activities are completely documented and subjected to data protection control/inspection.”

The excuse for Lower Saxony Verfassungsschutz’s spying on journalists was fighting neonazis and the excuse for federal Verfassungsschutz’s spying on journalists was fighting terror. In his 2007 book Das Ende der Privatsphäre [“The End of Privacy”], Mr. Schaar said in the 1990’s the excuse tended to be fighting organized crime.

Update on 14 Mar 2014: New Interior Minister Thomas de Maizière announced the Verfassungsschutz will stop watching members of the Leftists party, which many S.E.D. politicians from the former East Germany joined twenty years ago, “unless they have good grounds for surveillance.” It will also “in general” stop watching Bundestag members, no matter what party they belong to. He said they reserved the right to investigate resumption of surveillance if they received new knowledge. Such as, that Bundestag members had connections to extreme milieux willing to do violence. Süddeutsche.de said this change of policy is in response to a case Bodo Ramelow (Leftists, and kept under observation for decades) brought to the supreme court, Bundesverfassungsgericht, in Karlsruhe. The court decided in October 2013 that “parliamentarians could only be watched who abused their mandate to fight against the free democratic basic order.” Süddeutsche.de said Mr. de Maizière’s formal statement did not say members of state parliaments would generally no longer be watched, and it noted that formally that his statement only commits the federal Bundesverfassungsschutz to suspend operations, not the 16 state offices.

Update on 08 Apr 2014: A company that represents companies in the Maschinenbau industry [“machine building,” industrial engineering] signed an agreement with federal Verfassungsschutz at this year’s trade show in Hanover. The agreement is supposed to encourage more German companies to consult Verfassungsschutz about suspected cases of industrial espionage. FAZ.net: “But Verfassungsschutz’s advantage is that unlike police they do not have to follow up on a crime, said the association. That is to say, the intelligence agency can pass on information to a company that’s affected; what happens with it after that is the management’s decision.”

(Fer FOSS oongs shoots.)

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