DATA PRIVACY TRUMPS SECURITY: IMPLICATIONS OF A

C O N F I D E N T I A L SECTION 01 OF 04 BERLIN 001167 SIPDIS STATE FOR EUR, L, S/CT E.O. 12958: DECL: 09/17/2019 TAGS: PGOV PREL PTER KJUS KHLS GM SUBJECT: DATA PRIVACY TRUMPS SECURITY: IMPLICATIONS OF A FDP VICTORY ON COUNTERTERRORISM COOPERATION REF: A. BERLIN 988 ¶B. 2008 BERLIN 504 ¶C. 2008 BERLIN 354 Classified By: Global Affairs Unit Chief Don Brown for Reasons 1.4(b) a nd (d). ¶1. (C) Summary: Current polling data suggest that the Christian Democrats (CDU/CSU) and the Free Democratic Party (FDP) could receive sufficient votes in the September 27 national elections to form a governing coalition. The FDP are strong defenders of citizens' privacy rights and these views have led the FDP to oppose all of Germany's recent counterterrorism legislative proposals, as well as voice concerns about U.S.-German and U.S.-EU information sharing initiatives. Throughout these debates, the FDP has favored data protection measures over the need for governments to strengthen security-related information sharing for counterterrorism purposes. The FDP's strong views on individual liberties and personal privacy could lead to complications concerning law enforcement security cooperation and data sharing. Were the FDP to join the government, we expect they would closely scrutinize any proposals for security officials to access and/or share information concerning private persons with international partners, including the USG. End Summary. THE FDP AND DATA PRIVACY -------------- ¶2. (C) The FDP defines itself as a independent pro-business party, advocating low taxes, open trade, and minimal government intervention in business and private life. The party promotes European liberalism, championing freedom and individual responsibility under a government "as extensive as necessary, and as limited as possible." The FDP's limited government viewpoint shapes their views on counterterrorism policy. Following the September 11 terrorist attacks and in reaction to a number of terrorist plots uncovered in Germany, successive German governments have passed a series of legislative packages that have strengthened Germany's counterterrorism legal frameworks and broadened the investigative powers of law enforcement agencies. The FDP, which was not a member of these post-9/11 governing coalitions, regularly criticized these amendments for infringing on citizens' personal privacy rights. The FDP's criticisms of security-related data sharing agreements have also extended to the U.S.-Germany bilateral "Pruem-like" agreement to share personal information on serious crime and terrorism suspects (ref C),the U.S.-EU Passenger Name Recognition (PNR) initiative, and elements of the Visa Waiver Program that involve sharing information on travelers. FDP Objections to Counterterrorism Laws -------------- ¶3. (C) FDP parliamentarians and party leaders were strong critics of the CDU/CSU - SPD government's introduction of two new counterterrorism legislative proposals, the BKA Law and the Terror Camp Law. Passed in 2008 and enacted at the beginning of 2009, the BKA Law increased the investigative powers of the Federal Office of Criminal Investigation (BKA). The most controversial aspect of the BKA Law was that it permitted security officials to use a variety of technical surveillance measures in terrorism investigations (Ref B). Specifically, the law provides the BKA with the power to conduct remote, on-line investigations of the computers of terrorism and serious crime suspects. The FDP strongly opposed these measures as an unnecessary invasion of privacy, despite the limitation of on-line searches to only life-threatening situations (or threats to the constitutional order of the German state). These cases would require a judge's advance approval and are expected to number just a dozen cases per year. Nevertheless, FDP parliamentarian Max Stadler called the measures "constitutionally questionable," and in a meeting with EMIN, Stadler feared that authorities would carry out surveillance without sufficient evidence of wrongdoing. FDP parliamentarian Gisela Piltz warned that the law would turn the BKA into a "super spy agency resembling the FBI." Former FDP Federal Interior Minister, Gerhart Baum, blasted the law, saying it violated privacy rights, freedom of the press, and the inviolability of private residences. ¶4. (C) Earlier this summer, the government passed legislation developed by the Justice Ministry that criminalized a range of terrorism-related preparatory actions such as distributing information on bomb-making and participating in para-military training overseas (ref A). The law was developed in response to the September 2007 arrests in Germany of three homegrown terrorists who had attended an Islamic Jihad Union terrorism training camp in the Afghanistan-Pakistan border region. Justice Ministry officials and prosecutors have told EconOffs that the new law has closed gaps in Germany's legal framework that had previously prevented German prosecutors from charging German citizens and residents with activities that directly or indirectly supported terrorist groups. Prior to the passage of the law, the FDP criticized the draft as unnecessary, claiming that existing legislation was sufficient to arrest and prosecute potential terrorists in Germany. The FDP also criticized that law for allegedly requiring prosecutors to be able to prove that individuals who participate in training at overseas terrorist camps actually intend to carry out attacks; that the law would thereby permit the punishment for thoughts, rather than for actions. Justice Ministry officials have indicated to EconOffs that these criticisms are unfounded hyperbole and that prosecutors will be able to build strong cases against those who undergo training at foreign terrorist training sites. FDP Objects to U.S.-German Data Sharing Agreement -------------- -------------- ¶5. (C) Immediately following the March 2008 completion of the U.S.-German data sharing agreement to enhance cooperation in preventing and combating terrorism and other serious crime (aka, the Pruem-like agreement, Ref C),FDP parliamentarians began to express concerns regarding the agreement. FDP members took particular aim at an article in the agreement that calls for additional data protection measures to be taken if special categories of personal data (such as ethnic origin, political opinion, religion, trade union membership, and sexual orientation) are transferred among law enforcement agencies. (Comment: In our discussions with FDP parliamentarians, we explained that negotiators did not foresee that such information would need to be transferred regularly and that the article was inserted as a means of providing extra data privacy protections in the rare occurrence that such information was pertinent to an investigation. End Comment.) In meetings with EMIN, Stadler and Piltz also expressed objections to the data retention periods of the agreement, questioned which USG law enforcement agencies would have access to the information, and voiced a general concern about potential misuse of the personal information (names, DOBs, addresses, passport numbers, etc.) that would be shared by the agreement. Piltz further claimed that the U.S. government as a whole lacked effective data protection measures in comparison to Germany and questioned why the USG does not have a overall federal data protection commissioner as Germany does. (Comment: Piltz' remark underscores the importance of ensuring German officials receive information about USG data protection policy. The April visit to Berlin by DHS Chief Privacy Officer Callahan was useful in this regard, but more needs to be done to ensure German officials understand U.S. data protection policy. End Comment.) ¶6. (C) FDP leaders have also taken aim at U.S.-EU agreements that include data sharing elements. Following the July EU GAERC decision to give the Swedish EU Presidency a mandate to begin negotiating a successor agreement governing USG access to the Society for Worldwide Interbank Financial Telecommunications (SWIFT) database of financial transactions, FDP head Guido Westerwelle called the plan "totally unacceptable" and said that the "plan must be stopped." Parliamentarian Piltz, who is a member of the Bundestag Interior Committee, has criticized the U.S.-EU Passenger Name Record (PNR) data transfer agreement for collecting "pointless" information on travelers and she doubts whether the information collected under PNR would be of any value to law enforcement officials. In meetings with EconOffs, Piltz broadly spoke of governments, particularly that of the U.S., accumulating large amounts of data on their (mostly) innocent citizens. Piltz expressed concerns that German commercial interests could be damaged when U.S. authorities obtained PNR data on German business travelers that might somehow be shared with American competitors. Would the FDP be a reliable security partner? -------------- ¶7. (C) The FDP's voting record on counterterrorism legislation and the views of leading FDP security policy figures described here suggest that cooperation on security matters, particularly those involving information sharing, with a future German government that includes the FDP could be problematic. At times, the FDP's fixation on data privacy and protection issues looks to have come at the expense of the party forming responsible views on security policy. The FDP has been out of power for over 10 years and lack experience tackling security issues in the Internet age. The FDP appears not to fully grasp the transnational character of terrorism today and terrorists' increasing use of the Internet and related technology to recruit, train and organize. Current Interior Minister Wolfgang Schaeuble (CDU) has repeatedly drawn attention to terrorist use of the Internet, which he calls the "main medium of holy war against the West - it is the communication platform, advertising medium, distance university, training camp, think tank and recruiting instrument for terrorists." Schaeuble understands that combating terrorism in a globalized world requires international cooperation and for security officials to use modern technology. No FDP leader has displayed a similar understanding of the need to find a proper balance between personal freedoms and security measures; the FDP has all too often found it politically expedient to cast these goals as mutually exclusive. ¶8. (C) At election campaign rallies last week FDP Chairman Guido Westerwelle criticized the on-line surveillance measures contained in the BKA law and championed the FDP as the sole party committed to data privacy and protection issues. FDP parliamentarian Sabine Leutheusser-Schnarrenberger has been suggested as a possible Justice Minister in a CDU/CSU - FDP government, a job she previously held under Chancellor Helmut Kohl (CDU). Given that she resigned as Justice Minister in 1996 after failing to obtain support for her rejection of a CDU proposal to expand the state's right to monitor private citizens, we would expect her to closely scrutinize all bilateral and U.S.-EU information sharing proposals. In particular, a FDP-led Justice Ministry could well complicate implementation of the bilateral Pruem-like agreement, prevent negotiations on a HSPD-6 terrorist screening data sharing arrangement, and raise objections to U.S.-EU information sharing initiatives. ¶9. (C) An MFA official working in the counterterrorism office noted that one reason the FDP has been so vocal in opposing Germany's counterterrorism legislative drafts, bilateral and U.S.-EU security initiatives is due to the fact that they are in the opposition. Pure political considerations dictate that the role of the opposition is to oppose the governing coalition's proposals. Following this line of reasoning, were the FDP to join the CDU/CSU in a governing coalition, the responsibilities of power would perhaps convince them to take a more constructive approach to counterterrorism and security issues. Furthermore, given that the FDP would be the junior partner in the coalition, we hope that CDU/CSU leadership would ensure that German legal frameworks are adequate and that law enforcement and security officials continue our current close cooperation and robust information sharing on operational matters. Murphy