Is Germany Building the Next NSA?

BER­LIN—Daniel turned off his cell phone two U-bahn stops away from the protest. Best to be care­ful, he thought, even when knock­ing on the front door of where Ger­man spies go to work.

Des­pite the rain and bluster, Daniel, who, like many gathered in north­ern Ber­lin on Sat­urday af­ter­noon, would only give a first name, came out to ob­ject to a massive gov­ern­ment of­fice build­ing un­der de­vel­op­ment.

The row of ho­mo­gen­ous build­ings on Chauseestraße in Ber­lin’s Mitte dis­trict that was draw­ing his ire is the new headquar­ters of Ger­many’s for­eign in­tel­li­gence agency, the Bundesna­chrichten­di­enst, or BND.

“Refugees wel­come, BND go away,” one or­gan­izer said to a smat­ter­ing of ap­plause at the start of the anti-sur­veil­lance rally that at­trac­ted about 100 people. Sev­er­al short speeches fol­lowed in a small grassy al­cove—un­of­fi­cially christened by pro­test­ers as “Ed­ward Joseph Snowden Platz”—ad­ja­cent to the BND’s out­er fence.

On the fence, one of the pro­test­ers had hung a sign: “You are now leav­ing the demo­crat­ic sec­tor,” a ref­er­ence to the lan­guage used at check­points in di­vided Cold War Ber­lin.

A march soon fol­lowed, cul­min­at­ing in the form­a­tion of a hu­man chain-link fence around a side of the build­ing.

The an­onym­ous-look­ing com­plex, slated to be com­pleted in 2016 and cap­able of hous­ing 4,000 em­ploy­ees, rep­res­ents not only an ex­pan­sion of the BND—which is mov­ing its headquar­ters from the Bav­ari­an town of Pul­lach in former West Ger­many—but a con­sol­id­a­tion of re­sources in Ber­lin, a place many di­git­al act­iv­ists have long called home.

The con­struc­tion is also the latest flash point for pri­vacy ad­voc­ates in Ger­many, where many politi­cians, journ­al­ists, and act­iv­ists in re­cent months have be­gun to shift their at­ten­tion from the U.S. Na­tion­al Se­cur­ity Agency’s sur­veil­lance to the se­cret­ive activ­it­ies of their own spies.

“Most people are still wor­ried about the NSA,” said Tor­sten Grote, who joined the protest and works with Free Soft­ware Found­a­tion Europe, a group that lob­bies against big pro­pri­et­ary soft­ware com­pan­ies such as Mi­crosoft, Google, and Face­book.

But on this Sat­urday, the day’s protest was more about the BND. “We can’t re­form the NSA, but we can do something about the BND,” he said.

The Snowden dis­clos­ures that began more than two years ago strained U.S.-Ger­man re­la­tions and fanned anti-Amer­ic­an fer­vor in Europe’s biggest eco­nomy, where most voters already op­posed the U.S.-led Ir­aq war, the cre­ation of the Guantanamo ex­tra­ter­rit­ori­al pris­on, and the rise of a post-9/11 U.S. se­cur­ity ap­par­at­us that many fear re­sembles the bad old days of the East Ger­man Stasi po­lice.

That the NSA had tapped Chan­cel­lor An­gela Merkel’s private cell phone—re­vealed in 2013 by Snowden’s massive cache of stolen data—was a severe breach of trust to both the Ger­man gov­ern­ment and the pub­lic. Spy­ing among friends, Merkel said at the time, was un­ac­cept­able. Pres­id­ent Barack Obama nev­er pub­licly ac­know­ledged that the tap­ping took place but in ef­fect did so when he later prom­ised pub­licly nev­er to do so again.

But new rev­el­a­tions about the ap­par­ent ex­tent of Ger­many’s own spy­ing prac­tices—and the depth of its part­ner­ship with the NSA—have promp­ted a fresh wave of crit­ic­al scru­tiny in Ger­many, lead­ing some to ques­tion wheth­er Merkel’s gov­ern­ment is un­will­ing or in­cap­able of set­ting bound­ar­ies on spy­ing in Ger­many apart from the Amer­ic­ans.

“There is def­in­itely grow­ing aware­ness about the Ger­man in­volve­ment in this,” said Anne Roth, a polit­ic­al sci­ent­ist and re­search­er for the spe­cial Ger­man par­lia­ment­ary com­mit­tee in­vest­ig­at­ing the NSA. “Ger­many just wants to be part of the game.”

Roth said news re­ports last spring claim­ing that the BND was, at the NSA’s re­quest, spy­ing on Ger­man and European com­pan­ies such as Siemens and Air­bus, in ad­di­tion to sev­er­al European politi­cians, shocked some Ger­mans. The Bundestag com­mit­tee, she noted, is also fo­cus­ing more on the BND’s prac­tices and less on the NSA in part be­cause the Ger­man of­fi­cials have been so reti­cent to di­vulge in­form­a­tion about their U.S. spy­ing part­ners, even in closed set­tings.

Merkel’s gov­ern­ment has denied wrong­do­ing but has re­fused to re­spond to the par­lia­ment­ary pan­el’s re­quest for a list of the NSA’s re­ques­ted search terms, or “se­lect­ors,” which would in­clude de­tails on which IP ad­dresses, emails, and phone num­bers were po­ten­tially handed over to the United States for sur­veil­lance.

“We fear a bit the out­come of the Snowden rev­el­a­tions are not to be seen as a sig­nal for sav­ing civil liber­ties, but: ‘Oh, let’s do the same. We can do much more sur­veil­lance,’” said Markus Becke­dahl, a journ­al­ist who foun­ded the Ber­lin web­site Net­zpolitik, which pub­lished con­fid­en­tial Ger­man gov­ern­ment doc­u­ments pur­port­ing to show ef­forts to ex­pand U.S.-Ger­man spy­ing in Ger­many.

“So the BND is get­ting more money for build­ing up its cap­ab­il­it­ies for mass sur­veil­lance,” Becke­dahl said.

Ten­sions between the Ger­man gov­ern­ment’s spy­ing activ­it­ies and its di­git­al act­iv­ists boiled to the sur­face this sum­mer, when a fed­er­al pro­sec­utor opened an in­vest­ig­a­tion in­to wheth­er Becke­dahl and a col­league had com­mit­ted treas­on for pub­lish­ing the doc­u­ments, which ap­peared to show gov­ern­ment plans to ex­pand sur­veil­lance of Ger­mans’ so­cial-me­dia use.

A crush of me­dia scru­tiny and pub­lic out­rage fol­lowed, for­cing Ger­many’s justice min­is­ter to sack the pro­sec­utor and halt the in­vest­ig­a­tion, which was dropped.

The epis­ode was a rare de­par­ture from Ger­many’s usu­al pos­ture as one of Europe’s biggest ad­voc­ates of pri­vacy and data pro­tec­tion, a trait born in part out of its his­tory of sur­veil­lance by the Stasi and the Nazis, who re­lied on data re­gis­tries to sort and murder mil­lions of Jews and oth­ers dur­ing the Holo­caust.

From that dark past, Ber­lin has be­come an asylum for di­git­al act­iv­ists seek­ing refuge from the pry­ing eyes of their own gov­ern­ments. Amer­ic­an and Brit­ish ex-pats have flocked to the city of 3.5 mil­lion in search of pro­tec­tion and like-minded in­di­vidu­als, form­ing an en­clave that has ad­ded to Ber­lin’s coun­ter­cul­ture zeit­geist.

Yet Ger­many is also a place of con­tra­dic­tions when it comes to pri­vacy. Though many jeer Google as “daten­krake,” or a di­git­al oc­topus hell-bent on gob­bling up reams of per­son­al in­form­a­tion, the search en­gine re­mains over­whelm­ingly pop­u­lar in every­day use.

Some data-pro­tec­tion zealots re­fuse to use GPS loc­a­tion ser­vices on their phones, fear­ing they are be­ing tracked, but com­ply without com­plaint with laws that re­quire them to re­port their ad­dresses to po­lice and their re­li­gious af­fil­i­ations to tax au­thor­it­ies so a man­dat­ory “church tax” can be de­duc­ted.

While that would smack of Big Broth­er to many Amer­ic­ans, Ger­mans can avoid the church tax—but only by go­ing to a court to form­ally re­nounce their re­li­gious be­liefs. Not sur­pris­ingly, thou­sands of Ger­mans have done just that and most Prot­est­ant and Cath­ol­ic churches in the coun­try are well-fin­anced, well-re­stored, and main­tained—and in­vari­ably empty or un­der­used.

And though many Ger­mans vil­i­fy the NSA and li­on­ize Snowden, their own gov­ern­ment ap­pears eager to co­oper­ate with the United States in sur­veil­lance, a com­mit­ment that grew after the Septem­ber 11, 2001, ter­ror­ist at­tacks, which were partly planned in Ham­burg.

The dis­con­nect is not lost on Ber­lin’s pri­vacy act­iv­ists—ex-pats or loc­als—who in­vari­ably say the Ger­man cap­it­al, des­pite the BND’s muscle, will re­main the heart of their in­ter­na­tion­al move­ment.

“Snowden is sit­ting in Rus­sia, and Rus­sia is not the place in the world to stay if you are afraid of non­demo­crat­ic so­ci­et­ies,” said Al­ex­an­der Sander, the man­aging dir­ect­or of Di­gitale Gesell­schaft, a Ger­man In­ter­net-rights group. “It’s very dif­fi­cult to say, ‘Every­one come to Ber­lin, and you won’t have a prob­lem.’ It’s def­in­itely not like that."

Becke­dahl, the tar­get of the treas­on in­vest­ig­a­tion, is also quick to de­fend Ger­many’s motives.

“Ger­many is be­com­ing a sur­veil­lance state, too, but com­pared to oth­er coun­tries around us, we are still one of the last bas­tions of press free­dom and civil liber­ties,” he said.

However it re­mains to be seen if the ef­forts of Becke­dahl and oth­er pri­vacy ad­voc­ates will in­flu­ence the sur­veil­lance prac­tices of the Ger­man gov­ern­ment.

In the United States, Pres­id­ent Obama re­cently signed in­to law a bill that lim­its the NSA’s col­lec­tion of do­mest­ic phone metadata—the first sig­ni­fic­ant cur­tail­ment of in­tel­li­gence-gath­er­ing cap­ab­il­it­ies since Septem­ber 11, 2001.

But many coun­tries in Europe, in­clud­ing Bri­tain and France, seem to be go­ing in the op­pos­ite dir­ec­tion, a push that only in­creased after the Charlie Hebdo ter­ror­ist at­tacks in France and oth­er at­tacks on the con­tin­ent. Des­pite the Bundestag in­quiry and pub­lic dis­af­fec­tion with spy­ing, Merkel’s ma­jor­ity co­ali­tion ap­pears to have little in­cent­ive to pare down its own spy­ing.

The up­hill battle hasn’t dis­suaded Ber­lin’s leagues of di­git­al-pri­vacy avengers from try­ing, and many are plan­ning to keep a closer watch on what Ger­many’s BND can do from its gleam­ing new series of of­fice build­ings in down­town Ber­lin.  

“At least we have a huge pub­lic de­bate about mass sur­veil­lance,” Becke­dahl said. “There is ab­so­lutely no de­bate about wheth­er we need mass sur­veil­lance or not in some oth­er places.”