Upcoming court cases in Europe challenge spying without borders

An employee of the German foreign intelligence agency BND was arrested last week. He made the most recent headlines in
Europe in the never ending post-Snowden spying-without-borders affair. He allegedly leaked secret documents to the US services including the NSA and the CIA. While German politicians, including the ministers of Internal and Foreign Affairs, the German President Joachim Gauck and Chancellor Angela Merkel demanded explanations from the US once more, the weaknesses in the oversight and control of German, and for that matter other European services (e.g. the GCHQ), seem to draw less attention. Still the files of those who hope to oblige their governments to stop mass surveillance and related data sharing activities grow with each new revelation.

Complaints against GCHQ – first to hit Strasbourg?

In just one week the British Investigatory Powers Tribunal will hear a first round of complaints filed by Privacy International and other non-governmental organisations (NGOs) over the potentially illegal surveillance activities of the British General Communications Headquarter (GCHQ). More complaints to the Tribunal against the British secret services have been filed last week by a group of internet service providers and the German Chaos Computer Club.

Once the Tribunal will have made its ruling the complainants can demand to bring their case to the European Court of Human Rights (ECHR) in Strasbourg.

Already in September 2012, the Strasbourg Court – competent on questions related to the European Convention on Human Rights – had received a complaint from Big Brother Watch, the English Pen, the Open Rights Group and a CCC spokesperson. Yet on 8 April 2014, the Court decided to adjourn its examination of that case until after the delivery of the judgment of the British Investigatory Powers Tribunal in an earlier case, brought by nine parties that was similar. National legal remedies have to be exhausted before the ECHR decides on a human rights violation in one of its 47 member states, according to the Convention.

Complaints against the BND are already in the making

Already the hearings in national courts, in the UK, but also in Germany have helped to add interesting bits of information about the spying activities in these countries. For the GCHQ, Director General of the Office for Security and Counterterrorism, Charles Farr, said according to his written testimony, that Google, Facebook or web-based email services were “external services” and therefore were tapped without specific warrants.

During a pre-Snowden court case in Germany about the extensive tapping of emails (37 million hits were reported) by the BND, Berlin-based lawyer Nico Härting learned that the German service was cleared by the parliamentary authorities to tap electronic communications from as many as 196 countries to sift through them based on large lists of target words (around 30,000 filter words).

While the BND official acting as a witness did not deny the filtering out of emails of German nationals, he indicated that in the process sometimes even called for opening an email. The Federal Administrative Court ruled against Härting’s complaint because he was unable to prove that his personal electronic mail ended up in the dragnet.

Härting will appeal that very decision in the German Constitutional Court. After clear warnings by two former members of that court questioning the constitutionality of the existing legislation that allows for such extensive taps, Härting is confident that he can receive a different judgment – or go on to Strasbourg as well. The two former judges – both of whom were in function when the court decided against the German implementation of data retention and against the use of trojans by the German police – held that existing legislation had not was based on different technological possibilities than were available for strategic surveillance today.

Moreover, the publication of what was labelled by German media as “Snowden’s Germany file“ has revealed a much closer cooperation between the NSA and the German services, but also a civil agency like the Federal Office for Information Security (BSI). The German Parliamentary Inquiry on the NSA affair heard former NSA official Thomas Drake describe the relation between the NSA and the BND as the latter being a “vermiform appendix” of its US counterpart.

Germany-Greece settled

Lawyer Härting’s case also resulted in at least one EU member state complaining against the practice of spying on friends. After reports in the Greek press that the Greek Foreign Ministry wanted an explanation, a German government spokesperson flatly countered that there had been no official requests.

Meanwhile, there has been at least one. According to a spokesperson of the German Foreign Office, following a request from Greece, there had been an exchange between the Greek Ambassador in Berlin and a representative of the German Foreign Office. Apparently, the issue has been settled, as the Greek Embassy was not interested in sharing any more information with the Internet Policy Review. The German side had argued, the 196 countries on the tap list were not “targeted by the BND”, but could be “regions through which data streams run that are of interest to the secret services”.

More anti-spy cases to come?

A good deal of posturing was involved in these kinds of exchanges, said Matthias Kettemann, co-author of the European Yearbook on Human Rights 2014 and Fellow at the Cluster of Excellence “Normative Orders” of the University of Frankfurt. Kettemann said that states who would have been interested in a quick judgment on mass surveillance from European ‘friends’ could have chosen to go directly to the ECHR. “But there is no honor among thieves,” Kettemann said. Everybody is part of the spy system.

The human rights expert is much more looking forward to cases brought before the courts by organisations or individuals who can prove that they have been targets of indiscriminate surveillance. The one example that comes to mind is Sebastian Hahn, a German student who found out last week that his communications had been targeted by the NSA because he operates a Tor router as a private hobby.

Tor is a network helping internet users to stay anonymous while surfing the web. A reporter team of the German public broadcasters WDR and NDR revealed that the IP-addresses of Hahn’s servers were found in XKeyscore, one of the spy and data collecting tools revealed by Edward Snowden. If somehow there was a link of the XKeyscore-spying on Hahn to the German services, Hahn could have a good case. “Hahn could become for the spy-affair what Max Schrems has been for Facebook.” Schrems had dragged Facebook before the European Court of Justice over the question of whether data given to US companies and possibly transferred to the US are still safe. This case is still before the Court. Justice most certainly takes its time.