German Ministry Issues Draft Law Regarding Data Protection on the Internet

(Hunton & Williams LLP) On December 1, 2010, the German Federal Ministry of the Interior (the “BMI”) issued a paper  entitled “Data Protection on the Internet,” which contains a draft law  to protect against particularly serious violations of privacy rights online. In its paper, the BMI rejects the adoption of a specific law to regulate services such as Google Street View.  The BMI believes that, to the extent service providers implement sufficient technical and organizational measures to protect data, statutory regulation is not necessary.

The Ministry does, however, see a need for certain statutory rules to protect individuals from serious violations of their Persönlichkeitsrecht or “personality rights.”  In particular, the paper mentions Internet services such as facial recognition, search engine profiling and location-based services based on location information.  According to the paper, the publication of comprehensive data of this nature, or data that describes an individual in a defamatory way, should be published online or made publicly available only if (1) there is a legal justification for the publication, (2) the individual in question consents to the publication, or (3) there is an overriding policy interest in publication of the data.

Raid on Islamic Groups in Germany

The German Interior Ministry ordered simultaneous raids in three states on Tuesday against what it called Salafist networks suspected of seeking the imposition of an Islamic state. The action signaled growing concern over the radical messages of some Islamic groups.

The raids, in Bremen, Lower Saxony and North Rhine-Westphalia, were not linked to a recent terrorism alert reportedly inspired by phone calls from a man who said he wanted to quit working with terrorists and who warned of a pending Mumbai-style attack, the Interior Ministry said.

The ministry statement said the raids were directed at two groups: Invitation to Paradise in the cities of Brunswick and Mönchengladbach, and the Islamic Culture Center of Bremen, on the North Sea coast. The two groups work closely together and share the same ideology. The authorities are seeking to outlaw both groups.

The raids appeared to represent a departure for the German authorities in their dealings with radical Muslim groups. They were conducted under the authority of postwar laws enacted with an eye to the Nazis to prevent the overthrow of the state or Constitution by extremist groups. Before, those statutes had been invoked primarily against right-wing nationalist and neo-Nazi groups, and German intelligence had focused primarily on individual Muslim extremists rather than groups.

The ministry’s statement emphasized this shift in approach. “For a well-fortified democracy, it is necessary and demanded, without waiting for the jihad to occur in the form of armed struggle, to take action against anti-constitutional organizations.”

The statement said the groups were suspected of opposing constitutional order by seeking to “overthrow it in favor of an Islamic theocracy.” There was no indication that any arrests were made.

“The group is very influential and is especially active in converting people,” a senior German security official said, speaking on the condition of anonymity because the investigation was still under way. The best-known figure in the group is a German citizen, Pierre Vogel, a former boxer and convert to Islam. “They do have the aim to change Germany and make it Islamic, but there is no evidence that they were or are involved in any terrorism,” the official said.

German administrative Court rejects El-Masri CIA rendition suit

[JURIST] A German administrative court dismissed a lawsuit filed by Khaled El-Masri seeking the arrest and extradition of 13 Central Intelligence Agency (CIA) agents whom El-Masri claims kidnapped and illegally detained him in 2003 as part of the Bush administration’s extraordinary rendition program, according to a ruling made public Friday. The Cologne Administrative Court ruled Tuesday that the German Justice Ministry’s decision not to pursue prosecution against the CIA agents, despite a previously issued arrest warrant, was legal.

Wikileaks cables describe US pressure on Germany in context of data sharing agreements

A number of cables from the Berlin embassy reveal the US concern on Germany’s position in the SWIFT, TFTP and the bilateral US-Germany data sharing agreements. A revealing cable from December 2009 (09BERLIN1528) on the SWIFT agreement describes how  German Minister of Interior de  Maiziere overruled Justice Minister Sabine  Leutheusser-Schnarrenberger and abstained from voting at the November 30 COREPER vote in Brussels on an interim U.S.-EU  agreement to continue the Terrorist Finance Tracking Program. The cable describes the US pressure on De Maziere:

De Maiziere’s decision  followed two weeks of intense lobbying in Berlin, Brussels  and Washington by Embassy Berlin, USEU, the Departments of  Treasury, State and Justice and the NSC.  The campaign  included calls by Secretaries Clinton, Geithner, the Attorney  General and the National Security Advisor to their German counterparts.  State Department Counterterrorism Coordinator Benjamin urged support for the agreement during a two-day visit to Berlin (see septel). Ambassador Murphy twice wrote to all five relevant ministers (Interior, Justice, Finance,  Chancellery, and MFA) and made repeated calls to senior  decision makers, stressing the importance of the interim  agreement and the need for Germany to not block it.  The DCM,  Econ M/C, and staff from multiple embassy sections heavily  engaged on the issue as well.

While successful, the strategy wasn’t particularly appreciated:

De Maiziere intimated, and working level contacts have  confirmed, that Germany would like to avoid a repeat of our  all-out lobbying effort during the negotiations for a  long-term TFTP agreement. (…)
Nevertheless, the  intensity of this dispute should be a wake up call – we must  avoid repeating this as we look to completing the long-term  U.S.-EU TFTP agreement.  The coalition agreement calls for  strict limitations on the use of TFTP data, no automatic  access to the system, data deletion requirements, clear rules on sharing information with third parties and legal redress. These positions will guide Germany’s views in the follow-on  negotiations, and we need to consider how to take them into  account in a way that does not complicate TFTP  implementation.

In an earlier cable from November 2009 (09BERLIN1393) the US was concerned initially about  De Maiziere.

During his first day remarks to employees, de Maiziere  made the peculiar statement that “the Interior Ministry is  responsible for internal matters, and the Foreign Ministry is  responsible for issues external to Germany.”  This  characterization of the MoI’s tasks contrasts sharply with EU  law enforcement integration initiatives under Schaeuble such  as the Pruem data sharing agreement.  (…) More relevant is whether de
Maiziere will build on  Schaeuble’s record of deepening U.S.-German security  cooperation, such as the successful negotiations of a  bilateral “Pruem-like” agreement to exchange information on  terrorism and serious crime suspects, as well as establish an  automated fingerprint checking system.

But the US was really worried aboutthe prospect of having the FDP in the future German government. Cable 09BERLIN1167expressed fears that the FDP has ‘favored data protection measures over the need for governments to  strengthen security-related information sharing for  counterterrorism purposes’:

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.)

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. 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.

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Terror warnings in Germany have triggered a new debate on the country’s data protection laws

Der Spiegel reports that little progress has been made on a new draft data retention law, after the German court struck down the implementation of the EU Data Retention directive in March this year. German Interior Minister Thomas de Maizière, a member of Merkel’s Christian Democrats (CDU), has requested a new law allowing for the retention of telecommunications and Internet data for six months. The data, he insists, could provide valuable clues in terror investigations. Justice Minister Sabine Leutheusser-Schnarrenberger, a member of the business-friendly Free Democrats (FDP), Merkel’s junior coalition partner, has, however, categorically ruled out such legislation. “For the FDP there will be no mass storage of data for months, without good reason,” Leutheusser-Schnarrenberger told the southern German daily Augsburger Allgemeine. Her proposal of a law allowing data retention in specific cases, she says, “is the FDP’s compromise proposal.”

In parliament on Thursday, CDU justice expert Günter Krings demanded that a law be passed allowing for the retention of telecommunications and Internet data for a minimum of six months. Currently, he said, such data, particularly as relates to flat rates, is only saved “for a few days,” he said. De Maizière, who has repeatedly spoken in favor of extended data retention, merely said “our position, my position, is well known.”

The regional daily Rheinische Post reported on Friday that de
Maizière recently sent a letter to Leutheusser-Schnarrenberger demanding
that she drop her resistance to the secret surveillance of suspected
terrorists.

“Given the current threat level, I find it indefensible that
investigators are denied the required access to areas of highly
conspiratorial communication among terror suspects,” the letter read,
according to the paper. “I would be very grateful to you were the
Justice Ministry to reconsider its restrictive stance.”

Wife of convicted terrorist on trial in Germany

The wife of a German convert to Islam who was convicted of plotting a thwarted attack on U.S. targets in Germany went on trial herself Friday on charges of supporting terrorist organizations. Filiz Gelowicz, 28, is accused of supporting the Islamic Jihad Union and the German Taliban Mujahideen by helping provide 3,000 euro ($4,225) to fund terrorist training camps in the Afghanistan-Pakistan border region between 2009 and 2010. She faces up to five years in prison.

Baader-Meinhof murder trial opens in Germany

The BBC reports that a former member of the radical far-left Red Army Faction (RAF) militant group is going on trial in Germany over the 1977 murder of a federal prosecutor. Verena Becker, 58, was arrested last year for her suspected role in the ambush of Siegfried Buback. Two men escorting him were also shot dead. Police said there was DNA evidence implicating Ms Becker on a letter in which the RAF claimed responsibility.

Although Ms Becker was arrested the month after the Buback assassination, after a shoot-out with police, there was insufficient evidence at the time to convict her of his murder. She was sentenced to life imprisonment for her involvement in six other murders, but was pardoned by then-President Richard von Weizsaecker in 1989 and released. She was re-arrested in August 2009 and charged earlier this year with conspiracy to murder after new forensic technology allegedly revealed traces of Ms Becker’s DNA on a letter by the RAF sent claiming responsibility for the Buback attack.

Al-Qaeda-linked ‘terror plot’ targeting Europe foiled

There has been lots of news about this threat, but what do we know exactly?

Targets: Britain, France, Germany, the United States
It is claimed that intelligence agencies have disrupted an Al-Qaeda-linked plot to launch terrorist attacks in Britain, France and Germany “similar to the commando-style 2008 Mumbai attacks“, reports said.Militants based in Pakistan had been planning simultaneous strikes in London and major cities in France and Germany, Britain’s Sky News television reported, citing intelligence sources.The United States was also a possible target and President Barack Obama had been briefed about the threat, said ABC News in the US citing American officials.

German officials denied Tuesday they had intercepted threats, saying there had been no change to their threat level.

The treat is not the reason the Eiffel tower had to evacuate for the second time this week. French sources refer to threats made by al-Qaeda in the Islamic Maghreb (AQIM) in this context.

Perpetrators
Sky’s foreign affairs editor Tim Marshall said the leaders of the plot “had an Al-Qaeda and possibly some sort of Taliban connection projecting into Europe.” Planning for the attacks was advanced but they were not imminent, said the broadcaster. A British official would not confirm the plot was “al-Qaida inspired” but said there was an “Islamist connection” and that the plots were in an early stage. The main source of the threat information is a ‘German terrorist’, but the ‘organisers’ were in Pakistan.

How was it discovered?
The plot in Europe was uncovered after intelligence-sharing between London, France, Germany and the US, and their cooperation had led to the plot being severely. According to ABC:

Intelligence and law enforcement authorities in the US and Europe said the threat information is based on the interrogation of a suspected German terrorist allegedly captured on his way to Europe in late summer and now being held at Bagram Airfield in Afghanistan.

The captured German reportedly said several teams of attackers, all with European passports, had been trained and dispatched from training camps in Waziristan and Pakistan. Officials say the German claimed the attack plan had been approved by Osama Bin Laden.

This is quite important news, because as far as I know this German person is the only European which is currently being held in Bagram.

(More about the German Taliban Mujahidin here and here.)

Drones led to disruption of the plot?
When investigators discovered the plot, the US military began helping its European allies track down the organisers in Pakistan, which explains the recent increase in drone attacks in the country. A number of the attacks were designed to target the leaders of the plot and several of them were killed, according to the broadcaster.

Germany court allows surveillance of left-wing political party

(JURIST) A German federal court on Wednesday ruled the government’s Federal Office for the Protection of the Constitution (OPC) can keep tabs on members the socialist Left party using publicly available information. The decision overturns a ruling by a state court in North Rhine-Westphalia, which had said it was not appropriate for Germany’s intelligence agency to be gathering a file on The Left’s Thuringia state party leader Bodo Ramelow.

In its ruling the, court stated that the party has unconstitutional goals, which makes the government surveillance legitimate. The Left party has some historic ties to the former East German Communist party and has been linked to violent left-wing extremist groups. The suit challenging the surveillance was filed by Ramelow, who has indicated that he will appeal the court’s decision to the Constitutional Court.

The German government continues monitoring the rise of extremist groups and attempting to limit their influence within the country. Last November, the Constitutional Court upheld legislation prohibiting public support and justification of the Nazi regime. The ruling means that neo-Nazis are forbidden from assembling for the purposes of of approving, glorifying or justifying the Nazi regime.

ECJ declares DHKP-C inclusion on the list invalid after German court asks preliminary question

In E and F the Grand
Chamber considered another terrorism case, concluding that the
organisation DHKP-C’s inclusion on the terrorism list was unlawful prior
to 29 June 2007, for failure to give reasons, meaning that such inclusion “can form no part of the basis for a criminal conviction
linked to an alleged infringement of
Regulation 2580/2001” (par.
62).

ECCHR comment:

Proceedings began when the Düsseldorf Higher Regional Court submitted a question to the ECJ pertinent to its criminal proceedings against two Turkish left wing activists, accused of collecting donations for a listed organization. They submitted a preliminary question concerning the validity of the listing.

The charge consists of supposed violations of the AWG in the context of alleged membership of the DHKP-C. However, almost all concrete allegations put forward referred to work done for legal cultural organizations, solidarity work to ameliorate human rights violations in Turkish prisons and financial support of political prisoners. Nonetheless, the Office of the Federal Prosecutor has declared their actions to be in violation of Article 34 para. 4 of the German Foreign Trade Act. This regulation criminalizes those who “act contrary to a legally binding prohibition of export, sale, delivery, provision, transfer, service, investment, assistance or circumvention laid down in an act of law of the European Communities which was published in the Federal Gazette and serves the implementation of an economic sanction adopted by the Council of the European Union in the field of the common foreign and security policy.”

This blanket criminal law regulation refers to the so-called EU-Terrorism Lists. The list was implemented on the basis of an order by the European Court (2580/2001) and established by the Council of the EU. The list, which is reviewed bi-annually, lists groups and individual persons as “terrorist” and authorizes the freezing of their assets. Pursuant to the EU Order 2580/2001, it is prohibited to send either money or assets, whether directly or indirectly. Following the so-called double reference in Art. 34 para. 4 AWG both the Order and the list were incorporated into domestic criminal law. The DHKP-C is one of the organizations included on the list.

The ruling as announced by the ECJ (Rs. C-550/09) declares that the inclusion of the DHKP-C on the EU Terrorist List is invalid and cannot be used to shore up a conviction for the period prior to 29. June 2007 that is tied in with this alleged violation. Following the initial implementation of the List in 2002, it was not until 28. June 2007 that the Council amended the listing procedure to enable those listed to request information regarding the reason for their inclusion on the list. The ECJ declared that „The failure to provide a justification for the inclusion of the DHKP-C on the List was a deliberate attempt to impede adequate judicial checks on their material lawfulness, including above all a reevaluation of the facts of the case and the evidence and information upon which they were based” (Judgment para. 57).

Given this, a criminal sentence for violations of Art. 34 para. 4 AWG for the time period prior to June 2007 is per se not possible. Any sentence imposed for activity after 29. June 2007 fundamentally depends on whether the Council’s justification for the listing is sufficiently substantiated to allow for an effective defense and adequate judicial control. However, as this was not the subject of the preliminary question, and because no justification for the DHKP-C’s inclusion has been released to date, the ECJ has not yet been able to pass judgment on this.