What’s happened to Edward Snowden and his revelations about the National Security Agency’s surveillance programme? As stories keep emerging from one of the largest leaks in US history, we learn more and more about the Americans’ ability to monitor communications, but seem less sure how to respond. Most people would acknowledge that the state does retain some right to monitor suspect activities. But this is a very different proposition from the population-wide mass surveillance suggested by the documents leaked by Snowden. Clearly the balance has tipped much too far in favour of default data gathering. So how do we move it back?
This is a complex discussion, and it’s not really being had in the UK right now. The Guardian’s Simon Jenkins has suggested an establishment conspiracy has kept the public from talking about this – it’s certainly true that the response here has not been on the level of that in other countries (not least in Brazil, where a national Internet redesign to avoid US surveillance is being considered).
But part of the problem here is not simply that people have been shielded from the discussion on surveillance, or that people don’t care. It is that people do not know what we are supposed to do about this. Who do we appeal to? What do we want?
This is where the European Union can come into its own. An Englishman’s home may be his castle, but nowhere is protection of privacy given more credence than in Brussels and Berlin. A horror of Soviet-style surveillance of citizens runs deep in many European institutions and nation states, particularly those that had hands-on experience. The most powerful person in Europe, Angela Merkel, remember, was a citizen of Stasiland.
The European Parliament’s Civil Liberties, Justice and Home Affairs Committee (Libe), has set out to investigate claims of surveillance and examine what the EU can do about it. UK Labour MEP Claude Moraes has been charged with reporting on the Committee’s findings by the end of the year.
The parliament will be considerably aided by a 36-page briefing by independent surveillance researcher Caspar Bowden, who was helpfully mapped out the history of US and UK surveillance, and overlap with the European Union, all the way back to Alan Turing’s work with US spies in 1942.
Bowden comes up with several recommendations for Europe: the development of a “European cloud”, the revoking or renegotiation of mechanisms that allow US companies to gather data from European users, and, significantly in the case of the Snowden revelations, “systematic protection and incentives for whistleblowers”.
The European parliament investigation is welcome. But in reality, there is only a certain amount the parliament can actually achieve. The real power will, in the end, rest in the will of the governments of the respective European Union countries to act. Europe’s cyber strategy already states that “increased global connectivity should not be accompanied by censorship or mass surveillance”. But it’s time EU leaders acted on this.
That’s why Index on Censorship, along with dozens of other groups, including Amnesty, Reporters Without Borders and the Electronic Frontier Foundation, as well as stars and activists such as Bianca Jagger, Stephen Fry and Cory Doctorow, is petitioning European leaders directly. The next European Council Summit takes place at the end of October. We want every European government head there to publicly take a stand against mass surveillance.
The European Union, founded in part as a democratic bulwark against the authoritarianism of the eastern bloc, has a chance to stand out in the world against surveillance and for the rights of free speech and privacy. In the coming decades, power will be defined by who controls information: Europe, as a powerful democratic force, should work to ensure that its own ordinary citizens and people around the world are not left impotent.
Sign the petition telling EU leaders to stop mass surveillance here
Index on Censorship calls on the Parliamentary Assembly of the Council of Europe to investigate mass surveillance and protect whistleblowers
To: Members of the Parliamentary Assembly of the Council of Europe
Re: Motion for a resolution – Doc. 13288: Massive eavesdropping in Europe
We, the undersigned representatives of international and national human rights and freedom of expression organizations – ARTICLE 19, Reporters Without Borders, Privacy International, EDRI, Vrijschrift, Open Rights Group, INDEX, English PEN and Access Now – strongly urge the Parliamentary Assembly of the Council of Europe (PACE) to support the Resolution: Massive Eavesdropping in Europe, tabled on 31 July 2013 by 23 members of the PACE.
The resolution calls on member states to regulate and effectively oversee the secret services and special procedures and to pass legislative provisions at the national level to protect whistleblowers. The resolution also calls upon the Secretary General to launch an inquiry under Article 52 of the European Convention on Human Rights.
Our organizations support this timely resolution and remain concerned about recent revelations of surveillance of internet and telephone communications by the governments of the USA and the Council of Europe’s members, including France, Germany, Turkey and the United Kingdom. These revelations suggest a blatant and systematic disregard for human rights as articulated in Articles 8 and 10 of the European Convention on Human Rights and other international and European treaties.
The blanket application of surveillance mechanisms to global digital communications drastically threatens the protection of human rights in the digital age. We remind the PACE members that in his June 2013 report, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, highlighted the negative impact of surveillance on civil liberties, including the right to inform and be informed, freedom of expression and respect for privacy. We believe that the proposal, formulated in the PACE Resolution, could offer an invaluable assessment of the strength of legal safeguards for right to freedom of expression and privacy in the Council of Europe member states and offer a unique insight into the legal framework of surveillance.
Further, we also support the emphasis of the proposed Resolution on the need to protect whistleblowers. Whistleblowers play a critical role in promoting transparency and upholding the human rights and interests of all members of society. PACE must strengthen this protection of whistleblowers and support efforts to combat violations of fundamental human rights
We therefore call on all PACE members support the motion for the Resolution. In particular, at this stage, we call on the Presidential Committee to start an investigation into the matter and appoint a rapporteur for it.
The situation with regards to freedom of expression in Germany is largely positive. Freedom of expression is protected by the German Constitution and basic laws. There is room for improvement, with Germany’s hate speech and libel laws being particularly severe.
Germany’s biggest limits on freedom of expression are due to its strict hate speech legislation which criminalises incitement to violence or hatred. Germany has particularly strict laws on the promotion or glorification of Nazism, or Holocaust denial with paragraph 130(3) of the German Criminal Code stipulating that those who ‘publicly or in an assembly approve, deny, or trivialise’ the Holocaust are liable to up to five years in prison or a monetary fine. Hate speech also extends to insulting segments of the population or a national, racial or religious group, or one characterised by its ethnic customs.
Germany still has strict provisions in the criminal code providing penalties for defamation of the President, insulting the Federal Republic, its states, the flag, and the national anthem. However, in 2000, the Federal Constitutional Court stated that even harsh political criticism, however unjust, does not constitute insulting the Republic. The criminal code however remains in place.
Freedom of religious expression is compromised through anti-blasphemy laws criminalising ‘offences related to religion and ideology’. Paragraph 166 of the Criminal Code prohibits defamation against ‘a church or other religious or ideological association within Germany, or their institutions or customs’. While very few people (just 10) have been convicted under the blasphemy legislation since 1969, the impact of hate speech legislation is seen more frequently, in particular in the prosecution of religious offences. In 2006, a pensioner in the state of North Rhine-Westphalia was given a 1-year suspended sentence for printing ‘The Koran, the Holy Koran’ on toilet paper, and sending it to 22 Mosques and Muslim community centres. In 2011, nine of the 18 operators of the far right online radio programme ‘Resistance Radio’ were given between 21 months and three years in prison for inciting hatred.
Germany has also seen heated debate over a widespread ban on religious symbols in public workplaces, especially affecting Muslim women who wear headscarves, which limits, as a result, freedom of religious expression. Half of Germany’s 16 states have, to various extents, banned teachers and civil servants from wearing religious symbols at work. Yet this is not applied equally to all religions, five states have made exceptions for Christian religious symbols.
Media freedom
Government and political interference in the media sector continues to raise concerns for media independence, with several incidents of interventions by politicians attempting to influence editorial policy. In 2009, chief editor of public service broadcaster ZDF, Nikolaus Brender saw his contract terminated by a board featuring several politicians from the ruling Christian Democratic Union. Reporters Without Borders labelled it a ‘blatant violation of the principle of independence of public broadcasters.’ In 2011, the editor of Bild, the country’s biggest newspaper, received a voicemail message from President Christian Wulff, who threatened ‘war’ on the tabloid which reported on unusual personal loan he received.
Media plurality is strong among regional newspapers though due to financial pressure, media plurality declined in 2009 and 2010. Germany has one of the most concentrated TV markets in Europe, with 82% of total TV advertising spend shared among just 2 main TV stations in Germany. This gives a significant amount of influence to just 2 broadcasters and the majority of Germans still receive their daily news from the television.
The legal framework for the media is generally positive with accessible public interest defences for journalists in the law of privacy and defamation. However, Germany still has criminal provisions in its defamation law, which although unused, remain in the penal code. Germany’s civil defamation law is medium to low cost in comparison with other European jurisdictions, places the burden of proof on the claimant (a protection to freedom of expression) and contains a responsible journalism defence, although not a broader public interest defence.
Digital
The digital sphere in Germany has remained relatively free with judicial oversight over content takedown, protections for online privacy and a high level of internet penetration (83% of Germans are online). Germany’s Federal Court of Justice has ruled that access to the internet is a basic right in modern society. Section 184b of the German Penal Code ‘states that it is a criminal offense to disseminate, publicly display, present or otherwise make accessible any pornographic material showing sexual activities performed by, on or in the presence of a child.’ Germany has also ratified and put into the law the Council of Europe’s Convention on Cyber Crimes from 2001. Mobile operators also signed up to a Code of Conduct in 2005, which includes a commitment to a dual system of identification and authentication to protect children from harmful content. This was reaffirmed and made binding in 2007.
There are concerns over the increased use of surveillance of online communications, especially since a new antiterrorism law took effect in 2009.
In 2011, German authorities acquired the license for a type of spyware called FinSpy, produced by the British Gamma Group. This spyware can bypass anti-virus software and can extract data from the device it is targeting. Two reports by the German Parliamentary Control Panel, from 2009 and 2010, stated that several German intelligence units had monitored emails with the amount of surveillance increasing from 7 million pieces items in 2009 to 37 million in 2010. However, Germany’s Constitutional Court ruled in February that intelligence agencies are only allowed to collect data secretly from suspects’ computers if there is evidence that human lives or state property are in danger and the authorities must get a court order before they secretly upload spyware to a suspect’s computer.
Germany’s tough hate speech legislation also chills free speech online. In January 2012, Twitter adopted a new global policy allowing the company to delete tweets if countries request it, meaning that tweets become subject to Germany’s hate speech laws. The latest Twitter transparency report states that German government agencies asked for just 2 items to be removed. In October 2012, Twitter also blocked the account of a far-right German group, Better Hannover, after a police investigation.
Artistic freedom
Artists can work relatively freely in Germany. Freedom of expression in arts is protected under the Constitution, and is largely respected, especially for satire or comedy. Yet, the freedom of expression of artists is chilled through strict hate speech and blasphemy laws.
The German authorities very rarely use blasphemy laws against artists[xiv]. However, there have been several examples of art being subjected to censorship due to religious offence. In 2012, at the exhibition ‘Caricatura VI – The Comic Art – analog, digital, international’ in Kassel, a cartoon created by cartoonist Mario Lars was removed after protests that it offended religious sensibilities.
There is persistent sensitivity around artistic works depicting the Nazi period. In April 2013, the German version of an Icelandic author’s book was ‘censored’ by its publisher, who cut 30 chapters from Hallgrímur Helga’s novel, ‘The woman at 1000°’. Key passages about Hitler, concentration camps and SS were censored to fit the German market.
Index held an event last night with Doughty Street Chambers, where a panel of experts discussed whether or not democratic freedoms have been eroded by mass surveillance programmes.
The panel included the Guardian’s Technology Editor, Charles Arthur, Stephen Cragg, QC (Doughty Street Chambers), Index Chief Executive Kirsty Hughes, and Liberty’s Policy Director, Bella Sankey. The discussion was chaired by Kirsty Brimelow (Doughty Street Chambers, Chairwoman of Bar Human Rights Committee of England and Wales.)
Check out the conversation below, and be sure to follow @IndexEvents for updates on our future events:
