Do the Ends Justify the Means?: Merkel’s Eight-Point Data Privacy Plan

By Alex Racey

At her annual summer conference, Chancellor Angela Merkel remained coy on the details surrounding the NSA spy affair. She asserted that the government is taking the necessary steps to get information from Washington, but would not dish out any new details. In addition, she proposed an eight-point data privacy legislation plan. In step with her handling of the NSA affair, the chancellor was vague on the matter at the conference. However, the eight points, presented at this conference, are true to Chancellor Merkel’s pragmatic style.

German politicians, such as Chancellor Merkel and Minister of Justice Sabine Leutheusser-Schnarrenberger, opine that national and international data protection and privacy laws are no longer effective in today’s globalized world. German data privacy laws, while highly effective and stringent, pre-date the internet, and Article 17 of the UN’s International Covenant on Civil and Political Rights (ICCPR) does not regulate the activities of intelligence services. As a result of these perceived flaws, harmonization and additions to EU and UN legislation figure prominently in the eight-point plan. It calls for the following:

1. Telecommunication and correspondence agreements with the United States, UK, and France to be cancelled;
2. Continued dialog between German and American experts;
3. Revising Article 17 of the ICCPR to include intelligence services’ activities;
4. Harmonized EU data protection legislation that would require internet platforms to notify EU and member state government officials when they pass data on to third countries;
5. Closer collaboration among member states’ foreign intelligence services;
6. Increased support for small IT company start-ups;
7. The establishment of a roundtable to help improve security technology for businesses; and
8. Increased information and public outreach to businesses and citizens from the non-profit organization “Deutschland Sicher im Netz” (Germany Secure on the Net).

Merkel’s government is not wasting any time to begin implementing this plan. The German Federal Ministry of Justice has already voiced its support for the the International Conference of Data Protection’s Montreux Declaration, which calls for a legally-binding framework for data protection and privacy frameworks restricting intelligence agencies’ ability to collect data.

The rationale behind these goals is clear, but the feasibility of achieving them is more dubious. For instance, Facebook’s European offices are located in Ireland and harmonized legislation could help to provide legislative cohesion and solidarity within the EU. However, the chance of such legislation succeeding is quite low.

Harmonizing member states’ data privacy laws will be a very bureaucratically complex task, and it could also increase euro skepticism due to the essential questions regarding European identity. Even if the legislation were passed, it would more than likely be enforced under the Open Method of Coordination (OMC), which makes enforcement of the rules non-binding on member states. Outside of the European Union, the Montreux Declaration rules are non-binding in all cases, and the NSA would only have to reduce its activities if the United States volunteered to comply.  Moreover, the lack of knowledge put forth by Chancellor Merkel’s Chief of Staff Ronald Pofalla on cooperation between the NSA and Bundesnachrichtendienst (Federal Intelligence Service, BND) makes it harder for the chancellor to sell the eight-point legislation plan to the German polity.

As Chancellor Merkel’s Chief of Staff, Mr. Pofalla oversees and coordinates the activities of the nation’s intelligence services. Therefore, he is accountable to the Control Committee. Neither Mr. Pofalla, nor the Control Committee have given details of the meetings. However, Mr. Pofalla has largely led Chancellor Merkel’s silence on the degree to which the BND had cooperated with the NSA. In turn, opposition parties see the Merkel government’s low-key response as its last chance to gain ground in the polls.

Opposition party politicians, particularly in the Green Party, were quick to blast Chancellor Merkel for her stance at the summer conference. Such politicians felt that she was abusing her responsibility to protect and defend human dignity. Moreover, the opposition is utilizing this as its opportunity to portray the government as too weak and passive to demand answers from Washington. Subsequently, roughly 70 percent of the population disapproves of Berlin’s handling of the affair. In spite of this widespread public dissatisfaction, it is not predicted to impact the results of the September elections.

The NSA affair will stay with Chancellor Merkel through the upcoming elections. However, it has not yet tarnished her approval ratings, and she is over 20 percentage points ahead of her Social Democratic Party challenger, Peer Steinbrück. This indicates that the NSA revelations cannot undermine the relative economic success achieved under Chancellor Merkel. Germany has bounced back from being termed “the sick man of Europe” in the early 2000s to posting solid economic growth and employment rates recently. In short, when citizens are generally satisfied with their economic standing, they will not only be more flexible regarding their disapproval of something such as the NSA affair, but also retain support for Chancellor Merkel’s government. In spite of Merkel’s public approval rating remaining high, Russia’s granting of temporary asylum to NSA whistleblower Edward Snowden has spurred new stressors on German-American relations

On 2 August 2013, the German government cancelled its 1960s Cold War surveillance pact with the United States and UK. The cancellation suggests fatigue and continued frustration with the Obama administration over the NSA affair. Berlin is acting pragmatically by cancelling the outdated surveillance pact initially signed to protect American soldiers stationed in Germany. This move telegraphs to Germans that Merkel wants allegedly illegal surveillance on its citizens to stop immediately without hurting relations with the United States.

Indeed, the NSA affair presents complex cultural and political challenges to German-American and transatlantic relations. It provides the United States with an opportunity to work more closely with Germany and Europe to manage and contain common threats. The subsequent outrage and denunciation from many European politicians and citizens can serve as the impetus for more checks and balances from both sides of the Atlantic.

Further Reading:

AGI’s Continuing Coverage of NSA Allegations, Surveillance, and Data Privacy