Chapter 12 Germany’s recent intelligence reform revisited: a wolf in sheep’s clothing?
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By December 2016, the most significant intelligence reform in recent German history was finally on the books. It took more than a year of secret negotiations and a brief legislative process to codify important new rules about the practice, authorization and oversight of foreign data collection by the Bundesnachrichtendienst (BND), Germany’s foreign intelligence agency. The reform sets new international standards in regard to the authorization procedures now required for the surveillance of non-national data and the legal requirements for Germany’s participation in international intelligence cooperation. For the first time, there now exists a distinction between German nationals, EU nationals, and the rest of the world when it comes to restrictions on signals intelligence (SIGINT). At least de jure, Germany now requires the authorization of almost all untargeted surveillance measures by a panel of jurists. By contrast, recent reforms in the United Kingdom or the United States offer no such standard for non-national data. Despite this, the reform marks a clear victory for the Chancellery and the German security and intelligence establishment. They drove the reform and pushed the de jure expansion of the BND’s digital powers through the legislature despite numerous and widely reported scandals such as the careless disclosure of German and European strategic interests to the Five Eyes intelligence alliance and the warrantless spying on citizens, EU partners and international organizations. The reform placed much of the BND’s foreign communications data surveillance on a legal footing but did not fix the country’s woefully inadequate judicial oversight system. If anything, the reform paved the way for further retreat of judicial oversight in Germany. Its investment in more parliamentary oversight is helpful but not a sufficient response to the astonishing breadth of intelligence governance deficits left unaddressed. While the reform’s provisions on the targeting of fellow Europeans and international intelligence cooperation are important steps in the right direction, they are also too weak to actually rein in the German spymasters.

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