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.'"
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 theBudestag'sNSA
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
GerhardSchindler. [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.
