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### Viewing cable 09BERLIN1167, DATA PRIVACY TRUMPS SECURITY: IMPLICATIONS OF A

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Reference ID | Date | Classification | Origin
--- | --- | --- | ---
09BERLIN1167 | 2009-09-21 08:08 | CONFIDENTIAL | Embassy Berlin

`

    VZCZCXRO0245
    RR RUEHAG RUEHROV RUEHSL RUEHSR
    DE RUEHRL #1167/01 2640826
    ZNY CCCCC ZZH
    R 210826Z SEP 09
    FM AMEMBASSY BERLIN
    TO RUEHC/SECSTATE WASHDC 5253
    INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
    RUCNFRG/FRG COLLECTIVE
    RHMCSUU/FBI WASHINGTON DC
    RHEFHLC/HOMELAND SECURITY CENTER WASHINGTON DC
    RUEKJCS/HQ USEUCOM LO WASHINGTON DC
    RHEHNSC/NSC WASHINGTON DC
    RUCXONI/ONI WASHINGTON DC
    RUEHBS/USEU BRUSSELS
    RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
    RUEAIIA/CIA WASHINGTON DC
    RHMFISS/DEPT OF HOMELAND SECURITY WASHINGTON DC
    RHEFDIA/DIA WASHINGTON DC

` `

    C O N F I D E N T I A L SECTION 01 OF 04 BERLIN 001167

    SIPDIS

    STATE FOR EUR, L, S/CT

    E.O. 12958: DECL: 09/17/2019
    TAGS: PGOV PREL PTER KJUS KHLS GM
    SUBJECT: DATA PRIVACY TRUMPS SECURITY: IMPLICATIONS OF A
    FDP VICTORY ON COUNTERTERRORISM COOPERATION

    REF: A. BERLIN 988
         ¶B. 2008 BERLIN 504
         ¶C. 2008 BERLIN 354

    Classified By: Global Affairs Unit Chief Don Brown for Reasons 1.4(b) a
    nd (d).

    ¶1. (C) Summary: Current polling data suggest that the
    Christian Democrats (CDU/CSU) and the Free Democratic Party
    (FDP) could receive sufficient votes in the September 27
    national elections to form a governing coalition.  The FDP
    are strong defenders of citizens' privacy rights and these
    views have led the FDP to oppose all of Germany's recent
    counterterrorism legislative proposals, as well as voice
    concerns about U.S.-German and U.S.-EU information sharing
    initiatives.  Throughout these debates, the FDP has favored
    data protection measures over the need for governments to
    strengthen security-related information sharing for
    counterterrorism purposes.  The FDP's strong views on
    individual liberties and personal privacy could lead to
    complications concerning law enforcement security cooperation
    and data sharing.  Were the FDP to join the government, we
    expect they would closely scrutinize any proposals for
    security officials to access and/or share information
    concerning private persons with international partners,
    including the USG.  End Summary.

    THE FDP AND DATA PRIVACY
    ------------------------

    ¶2. (C) The FDP defines itself as a independent pro-business
    party, advocating low taxes, open trade, and minimal
    government intervention in business and private life.  The
    party promotes European liberalism, championing freedom and
    individual responsibility under a government "as extensive as
    necessary, and as limited as possible."  The FDP's limited
    government viewpoint shapes their views on counterterrorism
    policy.  Following the September 11 terrorist attacks and in
    reaction to a number of terrorist plots uncovered in Germany,
    successive German governments have passed a series of
    legislative packages that have strengthened Germany's
    counterterrorism legal frameworks and broadened the
    investigative powers of law enforcement agencies.  The FDP,
    which was not a member of these post-9/11 governing
    coalitions, regularly criticized these amendments for
    infringing on citizens' personal privacy rights.  The FDP's
    criticisms of security-related data sharing agreements have
    also extended to the U.S.-Germany bilateral "Pruem-like"
    agreement to share personal information on serious crime and
    terrorism suspects (ref C), the U.S.-EU Passenger Name
    Recognition (PNR) initiative, and elements of the Visa Waiver
    Program that involve sharing information on travelers.

    FDP Objections to Counterterrorism Laws
    ---------------------------------------

    ¶3. (C) FDP parliamentarians and party leaders were strong
    critics of the CDU/CSU - SPD government's introduction of two
    new counterterrorism legislative proposals, the BKA Law and
    the Terror Camp Law.  Passed in 2008 and enacted at the
    beginning of 2009, the BKA Law increased the investigative
    powers of the Federal Office of Criminal Investigation (BKA).
     The most controversial aspect of the BKA Law was that it
    permitted security officials to use a variety of technical
    surveillance measures in terrorism investigations (Ref B).
    Specifically, the law provides the BKA with the power to
    conduct remote, on-line investigations of the computers of
    terrorism and serious crime suspects.  The FDP strongly
    opposed these measures as an unnecessary invasion of privacy,
    despite the limitation of on-line searches to only
    life-threatening situations (or threats to the constitutional
    order of the German state).  These cases would require a
    judge's advance approval and are expected to number just a
    dozen cases per year.  Nevertheless, FDP parliamentarian Max
    Stadler called the measures "constitutionally questionable,"
    and in a meeting with EMIN, Stadler feared that authorities
    would carry out surveillance without sufficient evidence of
    wrongdoing.  FDP parliamentarian Gisela Piltz warned that the
    law would turn the BKA into a "super spy agency resembling
    the FBI."  Former FDP Federal Interior Minister, Gerhart
    Baum, blasted the law, saying it violated privacy rights,
    freedom of the press, and the inviolability of private
    residences.

    ¶4. (C) Earlier this summer, the government passed legislation
    developed by the Justice Ministry that criminalized a range
    of terrorism-related preparatory actions such as distributing
    information on bomb-making and participating in para-military
    training overseas (ref A).  The law was developed in response
    to the September 2007 arrests in Germany of three homegrown
    terrorists who had attended an Islamic Jihad Union terrorism
    training camp in the Afghanistan-Pakistan border region.
    Justice Ministry officials and prosecutors have told EconOffs
    that the new law has closed gaps in Germany's legal framework
    that had previously prevented German prosecutors from
    charging German citizens and residents with activities that
    directly or indirectly supported terrorist groups.  Prior to
    the passage of the law, the FDP criticized the draft as
    unnecessary, claiming that existing legislation was
    sufficient to arrest and prosecute potential terrorists in
    Germany.  The FDP also criticized that law for allegedly
    requiring prosecutors to be able to prove that individuals
    who participate in training at overseas terrorist camps
    actually intend to carry out attacks; that the law would
    thereby permit the punishment for thoughts, rather than for
    actions.  Justice Ministry officials have indicated to
    EconOffs that these criticisms are unfounded hyperbole and
    that prosecutors will be able to build strong cases against
    those who undergo training at foreign terrorist training
    sites.

    FDP Objects to U.S.-German Data Sharing Agreement
    --------------------------------------------- ----

    ¶5. (C) Immediately following the March 2008 completion of the
    U.S.-German data sharing agreement to enhance cooperation in
    preventing and combating terrorism and other serious crime
    (aka, the Pruem-like agreement, Ref C), FDP parliamentarians
    began to express concerns regarding the agreement.  FDP
    members took particular aim at an article in the agreement
    that calls for additional data protection measures to be
    taken if special categories of personal data (such as ethnic
    origin, political opinion, religion, trade union membership,
    and sexual orientation) are transferred among law enforcement
    agencies.  (Comment: In our discussions with FDP
    parliamentarians, we explained that negotiators did not
    foresee that such information would need to be transferred
    regularly and that the article was inserted as a means of
    providing extra data privacy protections in the rare
    occurrence that such information was pertinent to an
    investigation.  End Comment.)  In meetings with EMIN, Stadler
    and Piltz also expressed objections to the data retention
    periods of the agreement, questioned which USG law
    enforcement agencies would have access to the information,
    and voiced a general concern about potential misuse of the
    personal information (names, DOBs, addresses, passport
    numbers, etc.) that would be shared by the agreement.  Piltz
    further claimed that the U.S. government as a whole lacked
    effective data protection measures in comparison to Germany
    and questioned why the USG does not have a overall federal
    data protection commissioner as Germany does.  (Comment:
    Piltz' remark underscores the importance of ensuring German
    officials receive information about USG data protection
    policy.  The April visit to Berlin by DHS Chief Privacy
    Officer Callahan was useful in this regard, but more needs to
    be done to ensure German officials understand U.S. data
    protection policy.  End Comment.)

    ¶6. (C) FDP leaders have also taken aim at U.S.-EU agreements
    that include data sharing elements.  Following the July EU
    GAERC decision to give the Swedish EU Presidency a mandate to
    begin negotiating a successor agreement governing USG access
    to the Society for Worldwide Interbank Financial
    Telecommunications (SWIFT) database of financial
    transactions, FDP head Guido Westerwelle called the plan
    "totally unacceptable" and said that the "plan must be
    stopped."  Parliamentarian Piltz, who is a member of the
    Bundestag Interior Committee, has criticized the U.S.-EU
    Passenger Name Record (PNR) data transfer agreement for
    collecting "pointless" information on travelers and she
    doubts whether the information collected under PNR would be
    of any value to law enforcement officials.  In meetings with
    EconOffs, Piltz broadly spoke of governments, particularly
    that of the U.S., accumulating large amounts of data on their
    (mostly) innocent citizens.  Piltz expressed concerns that
    German commercial interests could be damaged when U.S.
    authorities obtained PNR data on German business travelers
    that might somehow be shared with American competitors.

    Would the FDP be a reliable security partner?
    ---------------------------------------------

    ¶7. (C) The FDP's voting record on counterterrorism
    legislation and the views of leading FDP security policy
    figures described here suggest that cooperation on security
    matters, particularly those involving information sharing,
    with a future German government that includes the FDP could
    be problematic.  At times, the FDP's fixation on data privacy
    and protection issues looks to have come at the expense of
    the party forming responsible views on security policy.  The
    FDP has been out of power for over 10 years and lack
    experience tackling security issues in the Internet age.  The
    FDP appears not to fully grasp the transnational character of
    terrorism today and terrorists' increasing use of the
    Internet and related technology to recruit, train and
    organize.  Current Interior Minister Wolfgang Schaeuble (CDU)
    has repeatedly drawn attention to terrorist use of the
    Internet, which he calls the "main medium of holy war against
    the West - it is the communication platform, advertising
    medium, distance university, training camp, think tank and
    recruiting instrument for terrorists."  Schaeuble understands
    that combating terrorism in a globalized world requires
    international cooperation and for security officials to use
    modern technology.  No FDP leader has displayed a similar
    understanding of the need to find a proper balance between
    personal freedoms and security measures; the FDP has all too
    often found it politically expedient to cast these goals as
    mutually exclusive.

    ¶8. (C) At election campaign rallies last week FDP Chairman
    Guido Westerwelle criticized the on-line surveillance
    measures contained in the BKA law and championed the FDP as
    the sole party committed to data privacy and protection
    issues.  FDP parliamentarian Sabine
    Leutheusser-Schnarrenberger has been suggested as a possible
    Justice Minister in a CDU/CSU - FDP government, a job she
    previously held under Chancellor Helmut Kohl (CDU).  Given
    that she resigned as Justice Minister in 1996 after failing
    to obtain support for her rejection of a CDU proposal to
    expand the state's right to monitor private citizens, we
    would expect her to closely scrutinize all bilateral and
    U.S.-EU information sharing proposals.  In particular, a
    FDP-led Justice Ministry could well complicate implementation
    of the bilateral Pruem-like agreement, prevent negotiations
    on a HSPD-6 terrorist screening data sharing arrangement, and
    raise objections to U.S.-EU information sharing initiatives.

    ¶9. (C) An MFA official working in the counterterrorism office
    noted that one reason the FDP has been so vocal in opposing
    Germany's counterterrorism legislative drafts, bilateral and
    U.S.-EU security initiatives is due to the fact that they are
    in the opposition.  Pure political considerations dictate
    that the role of the opposition is to oppose the governing
    coalition's proposals.  Following this line of reasoning,
    were the FDP to join the CDU/CSU in a governing coalition,
    the responsibilities of power would perhaps convince them to
    take a more constructive approach to counterterrorism and
    security issues.  Furthermore, given that the FDP would be
    the junior partner in the coalition, we hope that CDU/CSU
    leadership would ensure that German legal frameworks are
    adequate and that law enforcement and security officials
    continue our current close cooperation and robust information
    sharing on operational matters.

    Murphy

`