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

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Reference ID Created Released Classification Origin
09BERLIN1167 2009-09-21 08:08 2010-11-28 18:06 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