Dec 1, 2010

Liberty vs. Security: Germany's Free Democratic Party and US Data Privacy Policy 2009-2010

A series of diplomatic cables from 2009 to 2010 reveal concerns on the part of US diplomats regarding the German Free Democratic Party's strong stance on civil liberties and the protection of individual data privacy, and, ironically, document the current administration's frustration with widespread German skepticism toward US data privacy practices.

A document from early 2009 sets the scene for President Obama's meetings at the Strasbourg-Kehl NATO summit, and emphasizes the importance of German cooperation for the implementation of the administration's transatlantic agenda (2009/03/09BERLIN345).  By the fall of that year, in the run-up to Germany's September general election, it became increasingly apparent that the libertarian-leaning FDP would likely be a major partner in any new coalition government.  Considering the implications of an FDP victory on counter-terrorism cooperation, diplomats worried about the extent to which data privacy policy would trump security policy in the minds of newly empowered FDP officials.  As reported here the other day, a cable from shortly before the election frames the FDP's support for citizens' privacy rights and individual liberties as a hindrance to US security strategy, and states that, if it were to join a ruling coalition in Germany, the party would scrutinize any proposals that would require sharing or accessing  information concerning private individuals.

Following the elections of September 2009 and the formation of a coalition government between Chancellor Angela Merkel's CDU/CSU and Guido Westerwelle's FDP, a cable providing an overview of the new German cabinet emphasizes the views of Justice Minister Sabine Leutheusser-Schnarrenberger (FDP) regarding data privacy and civil liberties (2009/10/09BERLIN1360).  The document relates that she had already once resigned from the very same post under Chancellor Helmut Kohl (1992-1996) in opposition to domestic legislation allowing electronic eavesdropping on private residences, and implies that her strong focus on civil rights and data protection has led her to be highly critical of "what she views as overly intrusive wiretapping and other electronic surveillance measures." 

A cable from December 2009 reveals that "intense pressure" from high-level administration officials, including the Secretary of State, was necessary to overcome German reservations about the US-EU TFTP/SWIFT agreement, i.e. the Terrorist Finance Tracking Program, ahead of an initial vote on the measure by the EU Permanent Representatives Committee (2009/12/09BERLIN1528).  Deutsche Welle reported at the time:
Germany, Austria, Greece and Hungary abstained from the vote on Monday [November 30th], allowing the controversial measure to pass. It allows American justice authorities to access data from SWIFT - the Society for Worldwide Interbank Financial Telecommunications, a cooperative of banks and other financial institutions that facilitates trillions of dollars in daily international transactions. Its members include almost 8,000 financial institutions in more than 200 countries.

SWIFT is based in Brussels and has a server in the US, but a plan to move data servers to the Netherlands and Switzerland at the end of the year would have cut off US officials' ability to access such information. The existence of the US server allowed American authorities to use American anti-terror laws to access European transaction data. EU law would have barred such access had the servers been on European soil.

Germany and Austria had worried about the possibility that personal information could be passed on from the US to third parties. The agreement states that the US will not be allowed to share European data with third countries, and transactions between EU countries will not be monitored. The initial agreement will last for nine months, taking effect February 1, with plans to draw up a longer-term agreement when it expires.
The December 2009 cable reports that the German abstention on the vote was the result of intense, high-level diplomatic pressure from Secretary Clinton, Treasury Secretary Geithner, Attorney General Holder, National Security Advisor Gen. Jones and Ambassador Murphy.  The cable notes that this outcome "particularly irritated" Justice Minister Leutheusser-Schnarrenberger, who had led calls for a "higher level of data protection" than that provided for in the eventual agreement, and who stated that passage of the measure "upset millions of citizens of Europe."

Following this difficult vote, an action request was sent out in January 2010 calling on US officials to explain US data privacy policy to their German counterparts, on the assumption that concerns over US data privacy protections were based on misrepresentations and distortions of official policy (2010/01/10BERLIN128).  The cable frames the  "exaggerated data privacy views" of the FDP, as well as its "fixation on data privacy and protection issues," as a primary obstacle to German cooperation with US national security policy, stating that their opposition to data sharing operations results from the fact that the FDP sees itself as "defenders of citizens' privacy rights."

It turns out, however, that European skepticism over US data protection measures is not confined to Germany's FDP.  In February 2010, the European Parliament vetoed the TFTP/SWIFT agreement that had passed the Permanent Representatives Committee.  A cable composed shortly after the vote relates that Chancellor Angela Merkel was "privately angry" that German MP's from across the political spectrum, including those in her own party, the CDU/CSU, had voted against the measure (2010/02/10BERLIN180).  The leaked cable concludes that the US must intensify its engagement with German officials to "demonstrate that the U.S. has strong data privacy measures in place."

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