The Full Glare of European Hypocrisy on Surveillance

By Benjamin Wittes
Tuesday, May 5, 2015, 9:57 PM

In case you needed a refresher course on European hypocrisy on surveillance and data privacy, the New York Times today obliges with two stories over which the connoisseur of human folly ought really to pause. The first involves the adoption by France's lower parliamentary house of a new surveillance law so broad and so lacking in judicial review that it makes NSA's legal authorities look like a straight jacket:

The provisions, as currently outlined, would allow the intelligence services to tap cellphones, read emails and force Internet providers to comply with government requests to sift through virtually all of their subscribers’ communications. Among the types of surveillance that the intelligence services would be able to carry out is bulk collection and analysis of metadata similar to that done by the United States’ National Security Agency.

The intelligence services could also request the right to put hidden microphones in a room or on objects such as cars or in computers, or to place antennas to capture telephone conversations or mechanisms that capture text messages. Both French citizens and foreigners could be tapped.

. . .

In the current text of the proposed law, it states that the intelligence services can propose surveillance to protect “national independence, the integrity of French territory and national defense” and to “prevent terrorism.”

It can also be used to “prevent attacks on the republican form of institutions,” and to fight organized crime.

French judges and lawyers also cite the need for oversight in their criticisms of the law. Mr. Trévidic, the terrorism judge, has gone on national television and described the law as “dangerous” because it lacks any routine judicial review.

The new law would create a 13-member National Commission to Control Intelligence Techniques, which would be made up of six magistrates from the Council of State and the Court of Appeals, three representatives of the National Assembly, three senators from the upper house of the French Parliament and a technical expert.

Any requests to begin surveillance would have to go through the commission. However, if the commission recommended against setting up the monitoring, it could be overridden by the prime minister.

. . .

The only judicial oversight is a provision that allows the commission to lodge a complaint with the Council of State, but lawyers are doubtful that it could be convened on a routine basis. The Council of State functions as a legal adviser to the executive branch of government and a supreme court for matters of administrative law.

As for metadata, it would be electronically sorted, and only if the sites visited or searches carried out suggested suspicious behavior as defined by the intelligence services would a human review of a person’s emails and Internet browsing occur.

It turns out that Europeans are not really outraged by surveillance, or even what they call mass surveillance. They don't, in fact, demand expansive judicial review either. And that whole check and balances thing that we ring our hands about in this country: Meh, it's not that important. The problem is not unchecked surveillance. It's American surveillance Europeans can't tolerate. It's American access to data by either the menacing NSA or the rapacious Google and Facebook.

The problem is, let's be honest, us. The European Union can twist itself into knots claiming that there's a great principle at stake: call it "data protection" or "privacy" or "human rights." Don't be fooled. The European countries all have permissive regimes relative to ours. France is just stripping the matter bare.

The French, to be fair to them, have been less outraged than have some other European countries about NSA practices. But what then to make of this story about those earnest Germans, so upset by the new American Stasi and so offended that we might spy on our friends?

About 18 months ago, Chancellor Angela Merkel was the wronged American ally whose cellphone number was among data sucked up by American intelligence as it kept watch on Europeans.

“Spying among friends — that is simply not done,” she said after the discovery in autumn 2013, to a sympathetic domestic audience.

Within the past two weeks, the tide has turned. Ms. Merkel is back in the spotlight over spying. This time it is Germany’s foreign intelligence service, known here as the B.N.D., that is being accused of monitoring European companies and perhaps individuals. Further, the reports said the spying was done at the behest of the National Security Agency, the United States intelligence organization.

Critics have seized on the spying allegations, sensing a whiff of hypocrisy emanating from Berlin, given the German outrage over the American program. On Tuesday, Austria was the offended party, filing a legal complaint against the German and American intelligence agencies over suspicions that it was being spied on, Reuters reported.

. . .

The details of what the German government did or did not do in collusion with the American government remain murky, caught up in the secrecy inherent in security matters. But the federal prosecutor is examining whether to begin a formal investigation.

The regular parliamentary committee that oversees all intelligence services and a special parliamentary inquiry into the National Security Agency are also seeking more details and questioning key officials.

. . .

Ms. Merkel, asked on Monday whether her maxim about spying among friends still applied, said this was an “important” question and added, “I think the answer should be that it should not occur.”

But she recalled that she had noted in 2013 that it was necessary to strike a balance between liberty and security, and that this “will continue to be my job.”

“There is an innate tension,” she added. “We must improve what needs to be improved through reports to the parliamentary control bodies. But on the other hand, even if it is not so popular right now, it is part of their job for our intelligence services, especially the B.N.D., that they must and will cooperate internationally to protect the bodies and lives of 80 million Germans as best they can.”

“First and foremost,” she said, that means cooperation with the National Security Agency.

Really? Who knew?