When Angela Merkel learned in 2013 – thanks to Edward Snowden – that the US had been tapping her mobile phone, an outraged chancellor said: “Bugging friends is just not on.”
What she forgot to mention is that, under German law, it was perfectly legal for her spies to tap – or at least try to tap – the phone of a US president. And now it is even more legal.
On Friday the Bundestag passed new rules to improve oversight of Germany’s Federal Intelligence Service (BND), rules that maintain the status quo on tapping foreigners’ phones. What’s more, a government spokesman said the new law will “improve the BND’s legal position” when it does so.
In addition to tapping foreigners’ phones, the BND now has official permission to do what it has been doing quietly for years: tap foreign internet traffic passing through German internet hubs.
The new BND law, passed by the Bundestag on Friday, is Germany’s response to Snowden’s revelations that its foreign intelligence had a life of its own and was engaged in massive, illegal activity with no oversight – often hand-in-hand with the National Security Agency (NSA).
Tighter leash
In future, Germany promises a tighter legal leash for the BND: the existing 13-member parliamentary oversight committee of intelligence activity will gain 20 support staff and a new intelligence expert.
In addition, all BND activities abroad will be monitored by a second, three-judge legal commission to be established in Karlsruhe, home of the constitutional court.
Broadly speaking, the new law attempts to lay down in black and white what the BND can and cannot do, eliminating previous legal grey areas which the agency was happy to exploit.
For instance, article 10 of Germany’s post-war constitution expressly forbids the BND from spying on German citizens, a nod to excesses of the Nazi era, but Snowden leaks suggested this was happening on a large scale through its NSA partnership.
The new law forbids the BND spying on German citizens and orders that all such data accidentally collected in data dragnets is to be deleted. However, the new law makes clear that “strategic telephone intelligence” – tapping – of foreign citizens abroad can take place from German soil.
EU citizens outside Germany can also be targets in cases of “concrete dangers” and anything else that “endangers German security”.
"And this," sniffed the Süddeutsche Zeitung daily newspaper on Friday, "can mean anything."
Industrial espionage
Finally, the new law requires chancellery approval for all BND co-operation with foreign intelligence services and expressly forbids BND-backed industrial espionage.
While government MPs said the law was a crucial for modern intelligence work, opposition parties complained the BND was being rewarded despite never fully explaining abuses revealed by Snowden.
“This law is a gift for the BND because now it can, quite legally, go for the [data] cables, even when there is no concrete suspicion,” said Martina Renner, intelligence spokeswoman for the Left Party.
Meanwhile, German tech website Heise attacked the new BND powers to tap internet cables for foreign internet traffic. Because there is no effective way to separate foreign and domestic data flows, they said, this amounts to mass surveillance.
