The BigBrotherAward 2015 in the category Administration goes to the Federal Intelligence Agency (Bundesnachrichtendienst, BND), represented by its President Gerhard Schindler (of the FDP, the German liberal party).
The negative award is given to the German foreign intelligence agency for a range of scandals and violations of data protection and civil liberties laws, of which we can only deal with an excerpt here. The BND is awarded, among other things:
1. for its intimate entanglement with the NSA’s surveillance network, which contravenes human rights, and thus with the global mass surveillance affair;
2. because its so-called strategic surveillance of cross-border telecommunications, particularly its entire foreign intelligence using radio, satellite and cable is largely operating outside the law – according to renowned experts in constitutional studies it is simply unconstitutional;
3. because it daily collects, stores and evaluates more than 220 million telecommunications data records and forwards millions of those to foreign partner agencies. These records include constitutionally protected data of federal citizens, the forwarding of which is illegal. Furthermore, according to ex-NSA employee Thomas Drake, the BND is thought to have made sensitive information available for the United States’ drone war, and thus for the targeted killing of terror suspects;
4. not least does the BND receive the BigBrotherAward for its information blockade and its brazen cover-up of intelligence practices from the NSA Committee of Inquiry of the German Parliament, which had to deal with unwilling BND witnesses, BND documents with major parts blotted out or missing, or otherwise rigged – to quote loosely from the testimony of the Commissioner for Intelligence Agencies of the Federal Chancellery, Klaus-Dieter Fritsche (CSU), the “welfare of the state” was simply more important than parliamentary information and oversight.
I. Excessive Practices: Illegal Data Transfer between BND and NSA
I will only elaborate on one of the prize-worthy practices, to shed some light on the associated problems: The BND – with the help of Deutsche Telekom and bypassing all oversight committees – has been wiretapping an important internet node (DE‑CIX) in Frankfurt, and delivered vast amounts of material from this fountain of data to the NSA (Operation “Eikonal”).
This network node in Frankfurt is the world’s biggest fibre-optic node and data exchange point – just what the BND was waiting for to siphon off data for their suspicionless, cross-border “strategic telecommunications control”, always looking for indications of terrorism, arms trading and human trafficking. As “by-catch”, they also captured day-to-day communications of German citizens – which are given special protection in the German constitution and the meta-data of which the intelligence agency is neither allowed to store nor to forward to other countries’ agencies. The BND would have had to filter out these data. However, the filter specially designed for this task (DAFIS) was deficient, so a large amount of protected data was illegally forwarded to the NSA.
Data transfer between foreign intelligence agencies is not a one-way street anyway, but a mutually beneficial trade, preferentially conducted as a “ring exchange” of data. Here is how it works: Since a country’s foreign intelligence agency is barred from spying on its own people (that’s why it’s called the foreign intelligence agency), it simply spies on other countries’ populations, and then exchanges data with the respective partner agencies. This common practice will illegally hand data about the German population to the BND. On the whole, we have to assume grave violations of the basic rights to the secrecy of telecommunications, to privacy and to informational self-determination of millions of unaware people.
II. Intelligence-Gathering Rearmament
Despite this excessive, illegal and uncontrollable practice, the BND is not reined in by the legislator, but continues to be digitally upgraded and equipped for the mass surveillance business – for 300 million Euros, of which almost 35 million have already been approved. It is among other things for this secret upgrade, code-named “Strategic Initiative Technology”, and for other rearmament projects that the BND receives the BigBrotherAward. In particular, for the following:
• that the BND will be tasked with systematic, blanket and suspicionless wiretapping of social networks, blogs and web forums – metadata as well as content,
• that the BND will be using security vulnerabilities and “duplicate keys” to break into foreign computer systems and compromise encryption, specifically in order to spy on citizens, companies and networks which have taken special precautions to protect themselves against cyber attacks. Many of these will have trusted the good advice of the Minister of the Interior to please protect themselves against NSA surveillance by using encryption. A tip which, in the light of these plans for the BND, could quickly turn out as quite perfidious.
Example: BND surveillance of Social Networks
In the near future the BND is going to be given a highly questionable carte blanche, the license or authorisation for suspicionless spying on social networks such as Facebook, Flickr, YouTube or Twitter, as well as blogs and Internet forums. The collected network data and contents and the stored communications behaviour of users could then be automatically screened, condensed into personality and movement profiles, or evaluated biometrically; conclusions could be drawn about social and political contacts. This kind of Internet X-Raying is therefore a severe violation of the affected persons’ basic rights.
The federal government’s assertion that this would only affect foreign countries is either naïve or knowingly misleading and inaccurate: for one thing, basic rights and human rights are equally applicable in other countries, and furthermore, the servers of social networks are spread across the world, so that German domestic traffic traverses other countries and is therefore classified as “foreign”; in this way, German users can easily get into the BND’s sights.
Global surveillance of social communication spaces, where information, opinions, pictures and other sensitive data is exchanged, is supposed to preventively elicit and analyse general moods, anomalies, economic trends, political protests and relationships in certain countries and crisis regions. Social networks are also whetting the intelligence community’s appetite because they have developed into forums for mobilising protest movements – for example during the “Arab Spring”. This is why, beginning in 2015, the BND will put them under real-time control using NSA activities as a role model; their evaluation is of interest to the federal government, to the interior intelligence agency (“Verfassungsschutz”, so by reading their name literally they style themselves as the “protection of the constitution”), or to the armed forces for an early detection of crises, geopolitical and strategic problems and political activists.
Proponents of such mass surveillance methods claim that this is the only way to prevent terror attacks and fight organised crime, and that they have already been used for these purposes – a claim that could never be really proven due to confidentiality restrictions.
III. Information War Arms Race: Preventively Attaining Supremacy and Power
This appears to be an attempt by the BND to get rid of its image as the NSA’s “appendix”, as ex-NSA employee Thomas Drake called it disrespectfully, and to set itself apart from its Elder Brother. We are witnessing a fatal arms race in the information war of the intelligence agencies – an information war that is not least about geostrategic-economic interests and the preventive attainment of supremacy and power, as well as securing military operations. This is after all not only about protecting states or communities from terror and violence, but also about safeguarding against potential social unrest, violent insurrections or uncontrolled migrations and looming resource scarcity – using means including counter-insurgency measures and military intervention.
Well-armed and ultimately uncontrollable preventive agencies like these are rampant in the shades of the democratic state; they threaten people, socio-political movements and their civil liberties. In every person, every critical thought, every non-conforming behaviour, they sense a potential threat that needs to be observed. But people under constant surveillance can never be free. People who feel that they are being watched will change they behaviour, become insecure, develop fears, try to conform – effects that damage an open, democratic society, as has been found by the German Federal Constitutional Court (Bundesverfassungsgericht) more than 30 years ago in its famous census ruling.
IV. Surrender of the Rule of Law in the Face of State Injustice
Despite massive threats and violations of civil liberties through mass surveillance by NSA, BND and their associates, the federal government criminally neglected protecting their citizens and businesses affected by industrial espionage from these attacks – even though it has a constitutional obligation to provide such protection. Faced with this governmental lethargy, the German International League for Human Rights (Internationale Liga für Menschenrechte), the Chaos Computer Club and Digitalcourage filed a case with the Federal Prosecutor against the Federal Government and those responsible for the intelligence agencies: for the BND’s massive entanglement with the global mass surveillance system, for millions of violations of the human right to privacy and for the criminally negligent failure to take defensive measures. Thousands of people joined this case.
It is known that the Federal Prosecutor did initiate a criminal investigation, but only for the unfriendly spying attack against the Chancellor’s mobile phone. This decision casts doubt on the equality of all people before the law: there was no criminal investigation into the far more serious mass surveillance of the entire population – interestingly for lack of “sufficient evidence”.
Given the abundance of incriminating information and witnesses, this is a denial of reality or submissiveness – bordering on obstruction of justice. This denial of legal protection is the surrender of the rule of law in the face of state injustice.
We feel obliged to use this overdue BigBrotherAward to direct public attention once again to the machinations of the BND and to the problem of secret institutions in a democracy. This is the least we can do, although at first glance it may seem more effective to simply flood the new billion-Euro BND complex, as happened at the beginning of March this year: an inventive secret operation at the nation’s most secure building site. Even if this is not a permanent solution, this “Watergate” raises hopes of more leaks – desperately seeking a Snowden in the ranks of the BND! And perhaps this flooding gives us a foreshadowing of the foreign intelligence agency drowning in its own data deluge.
With this in mind: “Cheer up”, “Good Catch!” and congratulations for the BigBrotherAward 2015, Mr. President of the BND Gerhard Schindler!