The affair: a turning point

01 Aug 2015 by Jeanette Hofmann on Chilling effect

After more than 50 years, the issue of treason has returned with a bang onto Germany's public agenda. At first glance, this may seem a domestic story. Yet, it touches upon an increasingly contested relationship between freedom of expression, democracy and national security that affects not only this country but all digital societies.

On 30 July 2015, the German Federal Public Prosecutor notified two prominent journalists about an investigation on suspicion of treason against them. The journalists run, one of the oldest and most appreciated German language blogs with a focus on internet politics. It covers and uncovers relevant European policy issues and legislative actions. Last year, in 2014, the editors received a prestigious media award (Grimme Online Award), and this year, they won a prize in the "Land of Ideas” competition, ironically co-sponsored by the German government. Popular topics on the blog are net neutrality, telecommunication regulation, data protection and, obviously, surveillance. Many journalists use it as a source for their work. Internet researchers like me, too. Creating public awareness by leaking secret documents of relevance to the digital society is part of's mission. The website's editors regard as a hybrid of a news channel and an NGO advocating digital freedom and openness.

The affair

The investigation follows a criminal complaint, filed by the Office for the Protection of the Constitution (BfV), the domestic intelligence agency, against two leaks from February and April this year. Both leaks concern internal documents of the BfV produced for the trust body of the budget committee of the German Bundestag asking for additional funding. The BfV documents specify plans for creating new units for online surveillance and the monitoring of social media. The leaked content is certainly of interest to those who follow the surveillance activities of national intelligence agencies in greater detail. However, it hardly qualifies as groundbreaking news and it takes quite some effort to see how it could compromise national security. The plans for extending online surveillance were already out in the open since summer 2014. Only the details were new. published them to attract more attention to the BfV's plans and initiate a public debate about their constitutionality. Can this be deemed as a crime against the state?

The treason investigation has caused an enormous public outcry reaching even beyond the German borders; an outcry certainly louder than the Federal Public Prosecutor had anticipated. Roughly 24 hours after the news about the treason investigation broke, he already backpedaled. Considering the great good of freedom of the press and expression, he announced on 31 July that the investigation will be temporarily stopped to await a legal opinion expected to clarify whether or not the leak constitutes the release of a state secret.

The Spiegel affair

What are we supposed to think of the treason investigation against two bloggers? Is this just a theatre of the absurd as many people assert? The German press seems to think otherwise and draws analogies to the famous Spiegel scandal, the only other treason investigation since the founding of the Federal Republic in 1949. The Spiegel affair in 1962 constituted a major political scandal revolving around reporting by Der Spiegel, the leading weekly political journal at that time. At the centre of the affair were leaked details about the actual state of the German military. Based on a secret report, the Spiegel reported that the German forces were only partly able to defend the country. Scarily similar to the case, the information leaked was actually not so new. Large parts of it had already been published before. Charged for high treason, several journalists including the editor-in-chief were arrested and their offices raided. The Spiegel affair lasted for several months. In light of the Nazi past, the infringement of the freedom of the press caused strong public protest and led to a fully-fledged government crisis. The involved minister of defense finally had to step down. However, the most important outcome of the Spiegel scandal was the strengthening of the freedom of the press in Germany. Although the Spiegel lost its constitutional complaint against the German government, the Federal Constitutional Court's ruling established the legal foundation for the freedom of the press in Germany. On that ground alone, the Spiegel affair was widely regarded as a turning point in Germany’s authoritarian history that simultaneously put the new democratic culture to the test.

The two affairs have something in common

What both treason investigations share is that the leaked information per se does not explain the legal action taken. A betrayal of state secrets requires by definition that there is a secret. Given that there is evidence for previous reporting in both cases, "state secret" appears to be an elastic concept, and the Federal Public Prosecutor was  - and now is - skating on thin ice. Both treason investigations also have in common that the content leaked refers to highly sensitive and politically contested topics.

Digitisation and surveillance are hot potatoes today as much as the cold war and military readiness may have been some 50 years ago. The Spiegel affair about a partly dysfunctional defense force, incidentally a subject still prone to leaks today, occurred in the larger context of the cold war, common fears of a third world war, the German rearmament in the second half of the 1950s and the peace movement opposing this decision. Likewise, the treason investigation against the editors of takes place against the background of the Snowden revelations, the obvious reluctance of many governments to respond to the evidence of unconstitutional mass surveillance and national intelligence services spinning out of (democratic) control. In both cases, the stakes are high, governments act under great uncertainty, monitored by a press, now including a blogosphere, eager to reveal the questionable results of what scholar Charles E. Lindblom once nicely described as "muddling through".

The turning point

The information asymmetry between intelligence agencies and their supervisory bodies is a topical example of the uncertainties that both parliaments and the governments face. In social science, this constellation is known as a principal-agent problem (also known as agency dilemma): The principal delegates tasks to the agent but lacks sufficient information to assess the quality of the agent's performance. There is no standard solution to this problem in political theory or in practice. The fact that intelligence agencies necessarily act in secret only aggravates the dilemma. Public reporting and whistleblowing may be one of the few ways of altering the principal-agent constellation.  

Ever since Edward Snowden's revelations we know that with the advent of the internet the implications of this information asymmetry have become worse and now threaten basic human rights. In times of big data and the upcoming internet of things, opportunities for data collection and profiling in the name of national security will get nearly infinite. Given the lack of effective processes at present to democratically evaluate and control the action of intelligence services, blogs such as fulfill a crucial role in enabling public debate.

Let's hope that the comparison with the Spiegel affair holds so that the impressive public protest we saw this week against the treason investigation will also mark a turning point for the right to leak vital information to the public. 

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