The Politics of Personal Information by Larry Frohman

Author:Larry Frohman [Frohman, Larry]
Language: eng
Format: epub
Tags: History, Europe, Germany, Social Science, Privacy & Surveillance, Modern, 20th Century
ISBN: 9781789209471
Google: 3SHcDwAAQBAJ
Publisher: Berghahn Books
Published: 2020-12-09T01:06:51+00:00

Regulating the Spooks

It is more difficult to assess the significance of the Domestic Intelligence Agency Law.

First, the privacy commissioners argued that the right to informational self-determination required a greater differentiation among the agency’s tasks. Without a precise definition of the mission(s) of an organization, it would be impossible to determine what information was necessary to fulfill its responsibilities, establish what information-collection methods were appropriate and proportional for each purpose, or monitor compliance with the final purpose principle. In contrast, intelligence officials insisted that in practice it was impossible to draw such neat distinctions.66 The Bundesrat and then the conference committee added detailed definitions of the dangers that the agency was to combat.67 However, the privacy impact of this provision was blunted by the fact that the conference committee only required the compartmentalization of information with regard to security clearances, but not with regard to the primary responsibilities for defending against extremism, espionage, and terrorism. Moreover, since the anti-constitutional “activities” that the Domestic Intelligence Agency was authorized to monitor presumed a certain degree of organization, debate had often stumbled over whether it was possible to monitor organizations without collecting information on their individual members.68 In hopes of eliminating these ambiguities, the law also defined both the terms under which individual actions could be said to constitute support for an organization and those under which these actions would be considered “activities” in the sense of the law, even if they were not undertaken in support of an organization.

Second, in contrast to the administration draft, which had skirted the issue entirely, the final version of the law included a provision, which predicated the collection of information on extremism, espionage, and terrorism on the existence of “factual indications” of involvement in these activities. This had been an important point for the FDP.

Third, the privacy commissioners called on the legislature to enumerate, or at least give typical examples of, the covert methods that could be employed to carry out the newly defined responsibilities of the agency. Although the Bundestag acceded to this demand, it is difficult to believe that it contributed in any notable way to protecting privacy. More important, while the administration draft had required the agency to regularly report on its covert activities to the parliamentary commission responsible for monitoring phone taps and postal surveillance (the so-called G-10 commission), the domestic affairs committee put some bite into this provision by imposing the same limitations on the use of the information collected via covert means as were imposed on information gathered by phone taps and postal surveillance.

Fourth, the law sought to resolve some of the outstanding questions regarding the relation between the intelligence agencies and the police by prohibiting the former from “requesting” that the police undertake actions that the agency was not authorized to undertake on its own. It further stated that, if the agency requested information from any other office, this office could only provide the information that it had already collected in the course of its own work. Although these provisions

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