The table setting of 'Dr. F' - the data protection officer of the German intelligence

service, the BND. In testimony before the Budestag's NSA Committee of Inquiry, Dr.

F made clear how little clout she has in protecting the personal data of Germans.



BND Data Protection Officer Tells How Work with NSA Trumps German Law (Die Zeit, Germany)


"According to BND Data Protection Officer Dr. F., BND President Schindler considers satellite data as existing largely in a legal vacuum as it is gathered from space where German law does not apply. … In the opinion of Dr. F, the more constraining German data and communications protection provisions should apply. That means that data thereby acquired by the secret service that concerns foreigners may not so easily be passed on to 'foreign bodies.' When the NSA Committee of Inquiry first began, strict constitutionalists quickly registered their concerns about the legal basis for the handling of intercepted satellite data. Dr. F told the committee about an 'intense legal debate' at the BND management level, during which she had 'unfortunately been overruled.'"


By Lisa Caspari


Translated By Stephanie Martin


October 13, 2014


Germany - Die Zeit - Original Article (German)

The Foreign Intelligence Service's data protection officer told the Bundestag's NSA Committee of Inquiry about an argument she had with her boss Gerhard Schindler. Her concerns fell on deaf ears.


For a fully-qualified lawyer, Dr. F. certainly has an unusual job. For the past nine years she has worked for the Bundesnachrichtendienst [Federal Intelligence Service or BND] and for the past two-and-half-years as the BND's data protection officer. She reports directly to BND President President Gerhard Schindler, and her duty station is Berlin.


As stipulated by her employer, committee members weren't provided with more detailed personal information, such as Dr. F.'s full name, for example. Nevertheless, the statement of the secret service employee before the Budestag's NSA Committee of Inquiry on Oct. 9 was quite interesting, as it revealed the seriousness, or rather lack thereof, with which the BND has for many years treated - and continues to treat - the issue of data protection. 



When she became the BND's data protection officer in 2012, the department had long been leaderless, Dr. F. reported to the NSA Committee on Inquiry. She herself was "not technically trained," and brought only legal knowledge to the job. Even today, in dealing with the trove of data the BND collects, she has to rely on the technical expertise of BND intelligence personnel. She most often has someone show her a database and asks questions. Whether real oversight is possible under such conditions remains to be seen.


Where does the BND law apply?


During the examination of the witness it was revealed that the data protection officer is not responsible for controversial topics. A separate in-house lawyer is responsible for all data relating to constitutionally-protected telecommunications among Germans and legally sensitive issues surrounding its analysis, storage, and disclosure, in accordance with the G10 Law.


[Editor's Note: The G10 Law regulates the privacy of letters and telecommunications among Germans. According to the testimony of whistleblower Edward Snowden provided in March, "Germany was pressured into changing its G-10 law to reassure the NSA. According to Snowden's testimony, one of the foremost activities of the NSA's FAD, or Foreign Affairs Division, is to pressure or incentivize E.U. member states to change their laws to enable mass surveillance.]


On many issues of interest to the Bundestag's NSA investigators, Dr. F. can say nothing: Allegedly, she learned of the tapping of fiber-optical cables in the newspaper, and she could say nothing about the handling of communications data at the Frankfurt DE-CIX Internet exchange point [the world's largest], nor the case of Operation Eikonal. The latter took place before her time, she said.


[Editor's Note: According to the Snowden documents, "Operation Eikonal" involved BND cooperation with the NSA in skirting Germany's G10 Law, which forbids the monitoring of the personal communications and data of Germans – to say nothing of direct access to the Frankfurt DE-CIX Internet exchange point].


"So access to certain areas of the information gathering process were denied you," summarized the ranking member on the Left, Martina Renner. Renner noted that the G10-lawyer at the BND, who is responsible for controversial issues, doesn't work independently - unlike Data Protection Officer Dr. F. The man, a Mr. A.F., was to testify in closed session that evening [October 9].


Within areas that she is responsible, however, Data Protection Officer Dr. F proved she has a mind of her own. She reported candidly about an argument with her boss, BND President Gerhard Schindler. [Schindler is outranked within the intelligence apparatus only by Minister of Special Affairs Peter Altmaier and Chancellor Angela Merkel].


The dispute centered on Bad Aibling Station, where German intelligence officers capture and analyze satellite data from abroad - telephone calls in Afghanistan and Pakistan, for example. Members of American intelligence attached to the NSA are also stationed on the grounds.


According the testimony of Dr. F., BND President Schindler considers the satellite data as existing largely in a legal vacuum as it is gathered from space where German law does not apply.


"In my opinion, as the data is gathered at Bad Aibling, it is therefore within the scope of the rules governing the BND," Dr. F said before the NSA investigative committee. Therefore in her opinion, the more constraining German data and communications protection provisions apply to Afghan telephone calls as well. That means that data acquired by the secret service that concerns foreigners may not so easily be passed on to "foreign bodies."


"According to the rules governing the BND (the BND constitution), no such transfer to a foreign body will take place when the Federal Republic of Germany or its legitimate interests are affected," Dr. F. said.

Posted By Worldmeets.US


The ranking member of the governing Social Democratic Party on the committee, Christian Flisek, summarized: The BND leadership wanted to simplify the transfer of foreign-to-foreign communications to other services as much as possible and therefore, insisted on its own legal interpretation that there is no conflict with German law.


When the NSA Committee of Inquiry first began, strict constitutionalists quickly registered their concerns about the legal basis for the handling of satellite data intercepted at Bad Aibling. The data protection officer told the committee about an "intense legal debate" at the BND management level, during which she had "unfortunately been overruled." She was, after all, acting only in an "advisory role."



Dr. F. said that ultimately, she assumed that even without statutory restrictions, the BND adhered to "certain standards" when handling data – for example in regard to Afghan phone calls. These would be "the protection of human dignity, the prohibition of arbitrariness, and proportionality."


Until the memory bank was full


By her own account, Dr. F. monitors roughly 25 databanks containing classified BND data. Her task is to ensure that they comply with the data protection laws. In this respect, she specifically noted discrepancies in the BND Department for Signals intelligence. When she took the job, two databanks containing personal data were not, as required by law, examined by the Federal Data Protection Commissioner and approved by the Chancellery - and that in spite of the fact that they had been in use for years.


One of the databanks is the INBE, which contains information about German nationals. "We stored data until the memory was full," said Dr. F. Fortunately, this only took about twelve months, and the legislature permits up to 24 months.


The data protection officer is still in discussions with the Federal Data Protection Commissioner and the Department for Signals intelligence about the VERAS database, which for the most part houses data from foreign persons: "With whom has Terrorist X spoken in the last two weeks?" The fear is that unwarranted data retention is being carried out, which is incompatible with German law, said Dr. F.



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Posted By Worldmeets.US October 13, 2014, 8:49am


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