Germany's Troubled Trajectory with Mass Surveillance and the European Search for Safeguards

The landscape of digital communications and the evolution of surveillance technology is developing at unprecedented speed. As governments and industry actors debate new joint ventures to harness the potential of artificial intelligence in contexts of 5G and facial and biometric recognition systems and as cloud computing becomes ever more prevalent, so do the volume, variety and velocity of available data for government surveillance. These processes accelerate exponentially – not just in China but also in our democracies.

Governments serving open societies face immense challenges in coping with these new developments. For example, they need to engage much more in international cooperation as many threats, as well as supply chains for critical technology components, are transnational in nature. This may not be an easy transition for governments who still consider intelligence as the last bastion of national sovereignty. Given the enormous troves of data at their disposal, information overload remains a security risk, too. Yet, one must not overlook an equally severe and arguably even more pressing risk for our democracies, namely the erosion of fundamental rights and civil liberties. When the widespread acceleration in surveillance activity is not matched by a genuine evolution of adequate checks and balances, this can have far worse effects for the social fabric of our societies than the threats the surveillance is meant to address.

Current investments in advanced surveillance capabilities are driven by new technological possibilities. Yet, modern surveillance techniques struggle immensely to build human rights, democratic governance and ethics into their source code. In order to avoid dystopian realities, the legal frameworks and the oversight toolkit urgently need to catch-up and investment in AI and supervisory technology for oversight are overdue.

As this case study on Germany's recent troubled history with mass surveillance in the context of foreign intelligence collection shows, this is far easier to proclaim than to implement. It takes enormous strength by a persistent civil society and an independent judiciary to create positive change. While, obviously, there can be legitimate government interests in surveillance, the executive branch in Germany exploited accountability gaps and resisted effective democratic control for far too long. Now, in late 2020 the German parliament has a unique chance to adopt intelligence legislation that meets the long list of safeguards required not just by the German Constitutional Court but also by similar jurisprudence from the European Court of Justice. This process will be interesting to watch from abroad, too. This is because the question of how personal data can and will be protected against disproportionate interference by the state will remain a decisive question not just in transatlantic and EU-UK data transfers but also for democracies in general.