Restoring trust – an answer to President Obama’s NSA speech

  
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On January 17 President Obama started his speech about the NSA with remarks about the long history of US intelligence activities since the dawn of the American Revolution. He exemplified how intelligence has helped to secure the country and to support the military throughout American history.

History is often a good starting point for a speech, at least for a European citizen. However, in a discussion about the right balance between security and freedom the history of freedom should not be forgotten.

It is not easy to say where to start, but any deliberation of the matter should not neglect James Otis’ speech from 1761 against the writs of assistance. The writs were general warrants allowing officials of the British Crown to search for smuggled material within any suspected premises of the so called American colonies at that time. For James Otis one of the most essential branches of Liberty was the freedom of one’s house. In his speech he referred to Sir Edward Coke’s famous statement that “A man’s home is his castle – for where shall he be safe if it not be in his house?” This is much more modern than it sounds. In times of rapidly growing technological capabilities and of automatic industrial data collection the question is to whom personal data belongs and what government officials should be allowed to store? In Sir Edward Coke’s words: where does the house end in the twenty-first century? Is a smart phone with all its personal data and including the metadata of calls still part of a man’s house?

We know about James Otis and his five-hour speech only because a 25-year-old man was in the audience who summarized later his speech for succeeding generations. The name of the listener was John Adams. Another 35 years later he followed George Washington as the second President of the United States. Otis’ speech may have inspired him throughout his life. In 1780 Adams became the main author of the Constitution of Massachusetts, the oldest functioning written constitution of modern age. Its article 14 reminds strongly to the following fourth amendment of the United States Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It was exactly based on this fourth amendment when the brave United States District Judge, Richard J. Leon, issued an order on December 16 last year. It was “an order that bars the (US) government of collecting any telephony metadata” of two plaintiff’s personal accounts at a private phone company. He required “the (US) government to destroy any such metadata in its possession that was collected through the bulk collection program”. The case is still pending at the Court of Appeals. And unfortunately the Supreme Court declined on April 7 this year an early look and to hear the case, – a wrong decision given the relevance of the case for all people in the United States and abroad and given the importance of the case for the fundamental rights of the people. To quote Judge Leon: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power’, would be aghast.”

A month later, in his speech on January 17, President Obama reacted to this judgement. He ordered a transition away from the original bulk metadata program in two steps: First, the database can be queried only after a judicial finding or in the case of true emergency. Phone calls will only be pursued which are “two steps removed from a number associated with a terrorist organization” instead of the current three. Secondly, he instructed the intelligence community and the Attorney General “to develop options for a new approach” and it looks like that US phone companies are going to be responsible for the data storage in the future. However, new legislation is not yet in place. Instead the program under section 215 was reauthorized twice for 90 days. It is currently scheduled to expire on September 12, thirteen years and one day after the 9/11 attacks.

But President Obama not only hold a speech in the US on January 17. In addition he gave an interview on German television a day later. In the interview he told the German public that the US does “not listen to people’s phone calls or read their emails if there are no national security threats involved”. However, last October was revealed that the US might have monitored the cell phone and calls of German chancellors from 2002 until 2012. That’s why he confirmed again in the television interview to the German public what he already stated in his speech: the US “will not monitor (anymore) the communications of heads of state and government of our close friends and allies”. And – as long as he would be President of the United States – chancellor Merkel does not have to worry about it. Even though President Obama made important steps forward in his speech and his interview, he left to many questions open.

First, where does the so called “ordinary citizen” end? Not monitoring the communications of Ms. Merkel as the head of the German Government means – in turn – that the US might continue to monitor the communications of other German or European citizens. In fact, President Obama confirmed in his speech that “our intelligence agencies will continue to gather information about the intentions of governments – as opposed to ordinary citizens – around the world”. Furthermore ordering a transition of the database for bulk telephony metadata from the NSA to private US phone companies at home does not necessarily mean that the NSA will give up such programs outside of the US. People abroad are not covered by the US constitution. So, the question is, does the US still collect metadata of millions of phone calls of European citizens by wiretapping telecom infrastructure? And when does the US step in and spy on others than the head of state and government and ordinary citizens? Does – for example – the US spy on members of national parliaments in the European Union?

Secondly, where do criticism, dissent and protection end? And where do national security threats start? Is the article you are currently reading just an expression of dissent? Or does the NSA consider it already as a threat to national security and claims now the right to take actions? – Is a manager of a European Telecom provider who tries to protect customers from illegal surveillance by introducing new encryption standards still an “ordinary folk”? Or is he a threat to the national security of the United States and measures need to be taken? And what would these measures be? It is outreagous what they did with Lavabit, the E-Mail service provider with high encryption standards. Read here on lavabit.com how US authorities treated Ladar Levenson, the founder of Lavabit. So, what do US authorities do in the European Union in such a case? And what do they do openly and what secretely?

Thirdly, what if the European Council would issue a statement in the same way President Obama did? What if the European Council would say: ‘With our 28 secret service agencies we will start collecting intelligence in the United States. We are not interested in the calls or emails of ordinary Americans. And we will exclude the President. He does not have to worry about it – at least until the end of our terms. We can not speak for our successors, we hope they will follow our example.’ – How would the American people feel about it?

Fourthly, what about the constitutional rights of the European citizens? With the successful ratification of the Lisbon Treaty on December 1, 2009, the Charter of Fundamental Rights went into effect for 500 million Europeans. Its Article 8 states:

“Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data, which has been collected concerning him or her, and the right to have it rectified. Compliance with these rules shall be subject to control by an independent authority.”

Indeed, the highest court of the European Union just recently – on April 8, 2014 – declared the Data Retention Directive from 2006 to be invalid. The directive was the European version of a bulk telephony metadata program. The duration for the data storage under this directive was 6 to 24 months. The US government currently may hold on to the collection of telephony data for five (!) years. However, it looks like that under the new plans, US phone companies would be required to hold the data for 18 months.

A few years ago, in 2010, the highest court of Germany, the Bundesverfassungsgericht, already declared the German bulk telephony metadata program in several aspects to be unconstitutional. It was introduced in 2008 by the German government and based on the European Data Retention Directive from 2006.

In conclusion it means, that if the US continues to collect data of European citizens such as metadata of phone calls, it is permanently violating the fundamental rights of the citizens of the European Union. –

– The German-American friendship is a long one now. It truly started more than 65 years ago when the first American planes touched down at Tempelhof. The Berlin airlift turned enemies into friends – finally. President Obama knows it. He spoke about it in his speech in Berlin in 2008. 15 years after the airlift John F. Kennedy visited Berlin. He said that all free man wherever they may live are citizens of Berlin and that he – as a free man – would take pride in the words “Ich bin ein Berliner”. It was a message Germans might never forget. It was not only a guaranty for freedom but also a message of hope for the people of West-Berlin when just two years earlier a wall had been built around them and cold war tensions were at a high.

Four decades later the threats became different ones. The attacks of 9/11 were not only attacks on citizens on American soil, they were attacks on all people who love freedom, peacefulness and cultural richness. The cruelty of the attacks was unimaginably – until then. The asymmetry of the challenge is still the same. And open societies remain to be vulnerable. Terrorists try to take advantage out of it. For sure we still need to ensure a high level of security against these threats. But on the other hand we also need to ensure a high level of freedom and trust among our people. The West has always inspired people around the world because of – freedom, because of the opportunity to pursue and to live your own personal dream. Freedom, caring for each other, trust, respecting the separation of power and the rule of law, all that makes us different. It is in sharp contrast to what terrorists believe in. They usually hate freedom, they have their ideologies, their blindness and their bestiality, if someone does not fit into their view of the world. Then they do not only try to harm physically, they try to seed fear and distrust amongst the people they attack. Letting distrust win over trust between the people of the United States and the European Union would mean to let the terrorists of 9/11 have a final victory. Do we want to let that happen? For sure it was a momentous failure of German law enforcement agencies not to detect the Hamburg cell of 9/11. But – for sure as well – it was not the only failure in the run-up of the attacks. 

President Obama might be right that getting the details of the intelligence activities right is not easy. However, getting the guiding principles right is not that difficult: what has been developed over more than two hundred years in the physical world can be used as guidance for the new virtual world. It simply means that there should be no search and no query without a warrant issued by a judge – or in a case of a true emergency. And there should be no laws issued and no programs initiated without public transparency and discussion especially when they touch the fundamental rights of the citizens – as it is the case when the government collects metadata of millions of phone calls. Furthermore government agencies have an obligation to report to the public the successfulness of their programs and to abandon them in case there are not effective for the purpose they claim to support. That might be reasonable on both sides of the Atlantic, in the United States – and in Germany and the European Union as well.

The relationship between the US and Germany is still of importance for both sides. The US continues to have a strong presence in Germany. The US Consulate General in Frankfurt is the logistic hub for nearly half of US embassies and consulates around the globe. It is one of the most important facilities of its kind. The headquarters for the US Air Force for Europe and Africa is in Ramstein, 100 kilometres west of Frankfurt. Nearby is the biggest military hospital outside of the US. In Wiesbaden is the US army command for Europe headquartered. Millions of dollars were invested in the last years in the new facilities of the General Lucius D. Clay Kaserne. Still under construction on the compound is the so called “Consolidated Intelligence Center” and the “Information Processing Center”, which will host different US intelligence units.

Furthermore Germany is the United States’ largest European trading partner and the fifth largest market for U.S. exports. Bilateral trade sums up to more than 150 billion US dollars and the volume of foreign direct investments to more than 300 billion US dollars. The US and Germany share largely the same values, many times they pursue the same political goals. Trust and partnership, respecting the fundamental rights of the citizens is essential and in the interest of both nations. Spying on each other is not only a waste of resources, it is also destroying trust and is harming the friendship more than it helps to get information.

Earlier this month, on July 3, the German Federal Public Prosecutor General issued a warrant of arrest against a 31-year old German because of the strong suspicion of espionage. The man, an employee of the Bundesnachrichtendienst, the German secret service, is accused to have sold confidential information to the CIA. The information provided doesn’t seem to be of high value. As the Washington Post wrote: “It is hard to disagree with German Finance Minister Wolfgang Schäuble, who said ‘So much stupidity just makes you want to cry.’ Nevertheless, one week later, on July 10, the highest representative of US intelligence services in Germany was asked to leave the country. In addition German security agencies now start to look at US facilities and operations.

In fact current US politics challenge the deep German – American friendship. They jeopardize and undermine the trust into US politics in general and the support of the German public. They change the perception of the US embassy, US consulates and US military on German soil. And this influences other policy domains as well, for example successful negotiations of the transatlantic trade and investment partnership and a common approach to stop Iran getting nuclear weapons. As chancellor Merkel has stated it already more than once: it will not lead to more security for the people of the United States loosing Germany as an ally and friend.

In general global leadership requires more than military power and advanced intelligence capabilities. In fact, many data for the United States could be more encouraging. The US has become a global leader in incarceration, leading the statistics even ahead of Cuba, China or Russia. Gun violence remains a major problem throughout the country. In the City of Brotherly Love, in Philadelphia, in which the pursuit of happiness was once declared, statistically more than every second day a person is killed. And much higher is the number of shooting victims. The US is still struggling to implement a universal healthcare system – while many Europeans are familiar with it since a hundred of years. Energy efficiency and consumer protection are often behind European standards. The US does not recognize the International Criminal Court. And with the burst of the dotcom bubble in 2000 and the financial crises of 2008 the US economy has become a major factor of global instability. 

However, President Obama has already corrected the many mistakes and failures of the Bush administration. He was clear about tortion, he tried to close Guatanamo, he stabilized the US economy, he pushed new regulation for the financial system, he introduced universal healthcare, he campaigned for new legislation against gun violance and he is trying to end two wars. But it is not only time to lead the US out of a footprint of war. Many people around the world might welcome as well if the US would be also led out of a footprint of exaggerated global surveillance.

Instead of spying on each other, not respecting the fundamental rights of the other side and destroying trust, the United States and the European Union should pursue a different way into the future.

First, a public announcement of mutual abandonment of intelligence activities against each other would be helpful. The US should not fear precedence. The fact that i trust my friend does not mean that i trust everybody. Indeed, such a shared space would be something good not only for the citizens on both sides of the Atlantic. History of West-Germany and Western Europe has shown a space of freedom, security and prosperity functions like a magnet: it attracts others to join and to develop the same level of standards.

Secondly, the US congress and the parliament of the European Union – together with the national parliaments of Europe – should engage into a dialogue about data protection, law enforcement needs, intelligence activities and their oversight. And they should discuss and develop an appropriate legal framework. The goal should be to develop common standards – as much as possible.

Thirdly, the US and the European Union should continue negotiations of a transatlantic trade and investment partnership – but more transparent and more open for the public. This partnership should be – in the future – open to the participation of other countries.

In total, there is a major chance to build and even deeper and better partnership between the US and the European Union than today.

Imagine that the US and the European Union would become a double star in the twenty-first century – a transatlantic space of freedom and security, peacefulness and justice, sustainability and prosperity.

We should grasp this opportunity.

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