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Germany’s Intelligence Agency Uses Legal Loophole To Spy On Its Own Citizens

Tuesday, January 20th, 2015

While the American and British intelligence agencies are often criticized for spearheading mass surveillance practices, they are not the only ones to spy on their own citizens. According to recent reports, German intelligence agency Bundesnachrichtendienst (BND) also took advantage of a legal loophole to conduct surveillance of thousands of its citizens. These revelations are bound to shock most German citizens since there are tough laws in place that govern the surveillance and monitoring practices of the country’s police and intelligence agencies.

As per the German laws, BND is not allowed to conduct surveillance of German citizens including monitoring of those who are staying abroad. In order to spy on a German citizen, BND must first overcome the challenges posed by the tough G10 law and convince the judicial authorities that the surveillance is really needed. However, the law also stipulates that the intelligence agencies are allowed to conduct surveillance of state subjects working for foreign organizations without the need to obtain an order from the court. It is this loophole that BND has been using since last few years to spy on its own citizens.

The details of BND’s surveillance practices were revealed to the German Parliament by Dr Stefan Burbaum, a former lawyer who used to work for the intelligence agency between 2000 and 2005. As per the details provided by Dr Burbaum, German citizens working for foreign organizations are deemed as “office holders” who could be legally monitored by the intelligence agencies. As per the provisions provided by the German laws, professional communications of citizens working for foreign companies can be intercepted without needing an approval from the court. However, private communications of people employed by foreign organizations remains out of bound for BND and police unless such persons happen to reside outside the country.

The basis of BND surveillance is that people employed with foreign organizations are considered as office holders (which happens to be a legal entity) in addition to German citizens. Under the German laws, work related communications (emails or phone calls) are attributed to organizations and not to individuals. Thus, when a German citizen works for a foreign company, BND is legally allowed to intercept his communications. Of course, it can be argued whether the person is communicating as a German citizen or an office holder but the subtle difference is not enough to prevent BND from spying on state subjects.

Dr Burbaum also disclosed that BND retains data obtained from German telecom firms even though it is supposed to delete it after investigation. The G10 law allows BND to gather suspicious data from the telecom companies but the security agency must delete details that are not found to be useful. However, the agency regularly flouts the rules and keeps data of German citizens for an extended period of time.

The above revelations have provoked a severe backlash against BND’s surveillance practices. Members of opposition parties have accused the government of criticizing the spying activities of the NSA while encouraging similar practices within the country. They have also accused BND of operating in a lawless zone as far as the issue of spying on foreigners was concerned.

January 20, 2015

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