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German Authorities Investigate Surveillance Leaks

DEEPLINKS BLOG
July 22, 2015

German Authorities Investigate Surveillance Leaks

[Update 7/30/2015: The German authorities have now confirmed that Netzpolitik is being investigated under suspicion of treason. See our follow-up post for more details.]

[Correction 7/22/15: The original version of this article stated that the German security services were pressing charges against the blog Netzpolitik.org for publishing articles regarding Internet surveillance. The charges are currently believed by Netzpolitik.org to be aimed at the source of the leaks, not Netzpolitik.org itself. We've corrected the text of the article below, and changed the title and URL of this piece to reflect this change. While it is now less directly relevant to what is known of the Netzpolitik investigation, we've kept the discussion of the legal and global protections against the prosecution of journalists for publishing state secrets. We have posted the original article in its entirety below this revision for reference. We regret the inaccuracy of the original post. ]

The German domestic security service has urged the Federal Public Prosecutor to consider charges of treason as a result of two articles posted earlier this year by Netzpolitik.org, one of Germany’s most influential digital rights blogs. The articles reported on leaked documents regarding the German government’s mass surveillance plans. The German criminal code considers the leaking of state secrets to a foreign power, or to anyone else with the intention of damaging the Republic to be treason: the crime can be punished with up to five year's imprisonment.

According to a statement from the Netzpolitik.org, “We have reported on [mass surveillance] because we deem it necessary to start a social debate.” As the blog further stated:

“These investigations are an attack on the freedom of press and an unacceptable attempt to intimidate against sources and whistleblower concerning a topic which about the public would be furthermore duped and sealed off from without Edward Snowden’s courage."

The first article [English translation here], published back in February, reported on the German government’s plans to collect and monitor masses of Internet data—including social media data—and on the government’s “secret budget” for the program. The article notes that the German government’s plans mimicked the mass data acquisition by the NSA and includes the full text of a leaked secret surveillance budget from 2013. The second article [English translation here], published in April, reported on the German secret service’s plan to set up a new Internet surveillance department dedicated to improving and extending the government’s mass surveillance capabilities—the “Erweiterten Fachunterstützung Internet” or “Extended Specialist Support Internet” department. The German-version of the article includes the full text of a leaked document describing the government’s plans for the new unit.

Netzpolitik learned of the investigation from a radio news story. The case was later confirmed by a Federal Prosecutor's office spokesperson. Under German law, public prosecutors have an obligation to investigate crimes reported to them.

Courts in the United States have long recognized the importance of allowing the press—including blogs—to report freely on leaked government documents involving matters of public concern. Back in 1971, in the seminal Pentagon Papers case, the U.S. Supreme Court struck down an attempt by the U.S. government to bar publication of information of great public concern obtained from documents allegedly obtained illegally by a third party, writing that “Only a free and unrestrained press can effectively expose deception in government.” New York Times Co. v. United States, 403 U.S. 713, 717 (1971).

The United Nations General Assembly, too, has recognized the importance of a free and unrestrained press. According to Article 19 of its Universal Declaration of Human Rights, adopted on December 10, 1948, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Thirty years later, in 2001, the Supreme Court held that the First Amendment also shields from liability anyone who republishes materials that are a matter of public interest—even if their source obtained the documents in question illegally and even if the republisher knew the documents had been obtained illegally. The Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance” and that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001).

The German experience also reflects this global standard of protection for reporters covering state secrets. Most famously, the early years of the Federal Republic, when politicians orchestrated the raid and arrest of Der Spiegel journalists under a charge of treason for writing about West Germany's defences against Soviet attack, Germans protested with mass demonstrations and riots. The courts refused to consider the charges, and while the newspaper was shuttered for weeks and its reporters held in detention, the Der Spiegel scandal ultimately affirmed Germany's commitment to a free press, and profoundly damaged the careers of the elected officials who originally pushed for the prosecution.

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Original Article:

Treason Charges Against German Blog Netzpolitik.org are an Attack on the Free Press

The German domestic security service has pressed charges of treason against Netzpolitik.org, one of Germany’s most influential digital rights blogs, as a result of two articles it posted earlier this year. The articles reported on leaked documents regarding the German government’s mass surveillance plans—a matter of public concern for which Netzpolitik should be commended, not punished, for covering. The German criminal code considers the leaking of state secrets to a foreign power, or to anyone else with the intention of damaging the Republic, to be treason. The crime can be punished with up to five year’s imprisonment.

According to a statement from the Netzpolitik, “We have reported on [mass surveillance] because we deem it necessary to start a social debate.” As the blog further stated:

These investigations are an attack on the freedom of press and an unacceptable attempt to intimidate against sources and whistleblower concerning a topic which about the public would be furthermore duped and sealed off from without Edward Snowden’s courage. (emphasis added). 

The first article [English translation here], published back in February, reported on the German government’s plans to collect and monitor masses of Internet data—including social media data—and on the government’s “secret budget” for the program. The article notes that the German government’s plans mimicked the mass data acquisition by the NSA and includes the full text of a leaked secret surveillance budget from 2013. The second article [English translation here], published in April, reported on the German secret service’s plan to set up a new Internet surveillance department dedicated to improving and extending the government’s mass surveillance capabilities—the “Erweiterten Fachunterstützung Internet” or “Extended Specialist Support Internet” department. The German-version of the article includes the full text of a leaked document describing the government’s plans for the new unit.

Netzpolitik discovered that they were reported to public prosecutors by Germany’s domestic security agency, the Federal Office for the Protection of the Constitution (BfV) from a radio news story. The investigation was later confirmed by a Federal Prosecutor’s office spokesperson. Under German law, public prosecutors have an obligation to investigate crimes reported to them.

Courts in the United States have long recognized the importance of allowing the press—including blogs—to report freely on leaked government documents involving matters of public concern. Back in 1971, in the seminal Pentagon Papers case, the U.S. Supreme Court struck down an attempt by the U.S. government to bar publication of information of great public concern obtained from documents allegedly obtained illegally by a third party, writing that “[o]nly a free and unrestrained press can effectively expose deception in government.”  New York Times Co. v. United States, 403 U.S. 713, 717 (1971)

Thirty years later, in 2001, the Supreme Court held that the First Amendment also shields from liability anyone who republishes materials that are a matter of public interest—even if their source obtained the documents in question illegally and even if the republisher knew the documents had been obtained illegally. The Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance” and that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001).

The United Nations General Assembly, too, has recognized the importance of a free and unrestrained press. According to Article 19 of its Universal Declaration of Human Rights, adopted on December 10, 1948, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The German experience with the use of treason charges against journalists has reflected this global standard of protection for reporters covering state secrets. Most famously, in the early years of the Federal Republic, when politicians orchestrated the raid and arrest of Der Spiegel journalists under a charge of treason for writing about West Germany’s defenses against Soviet attack, Germans protested with mass demonstrations and riots. The courts refused to consider the charges, and while the news magazine was shuttered for weeks and its reporters held in detention, the Der Spiegel scandal ultimately affirmed Germany’s commitment to a free press—and profoundly damaged the careers of the elected officials who originally pushed for prosecution of the Der Spiegel journalists.

Mass surveillance by a government is undeniably a matter of deep public concern. Netzpolitik should not be punished for reporting on the German government’s plans to surveil—i.e., to spy on—its citizens. Germany's public prosecutor should reject this attempt to intimidate journalists from covering one of the most pressing issues of the day.

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