The reaction in Germany and throughout Europe to the revelations of NSA surveillance continues to swell in bigger waves. The information drawn from the computers of Edward Snowden enrage many, disappoint others, and generate more questions about the oversight of the American way of intelligence gathering.

While the defensive argument that “everybody does it” is offered by some apologists, it is no more convincing than claiming “it is in the interest of security for us all”. The larger questions overshadow such explanations. Who authorized what, to watch whom, and for which purpose? The fact that countries engage in intelligence gathering is nothing new. Whether it be industrial espionage or security concerns, the need for intelligence is unavoidable in a networked global arena. That said, most democracies haves rules pacing limits on intelligence gathering of its own citizens. Those rules don’t exist in authoritarian systems.

On the global stage the rules are less clear, despite various agreements or treaties. In matters of state, sovereign governments decide what is in their best interests. In the United States—a country equipped with exceptional tools and the perception of a super power—the arena for intelligence gathering is global. Everything is deemed relevant intelligence no matter where it is found. That was the case well before 9/11 but it became an exponentially larger policy afterwards. Comprehensive surveillance at home and abroad seemed both urgent and blessed by Congressional approval during the last decade, despite consistent warnings about excessive overreach and illegal intrusions into the private spheres of citizens. That battle continues to be fought in courts and in Congress involving the alleged abuses of power and authority in the name of national security.

Nevertheless, oversight over surveillance outside of the United States is less subject to public debate. Who decides what is of strategic value remains in the hands of those behind closed doors. When engaged, the courts—particularly the court responsible for overseeing the Foreign Intelligence Surveillance Act (FISA)—tend to be cooperative in granting the government permission to pursue surveillance at home. But there are still some tools to challenge those policies and practices, though they may be relatively unknown to most Americans.

Yet what recourse remains for non-citizens, governments, and organizations outside the boundaries of the United States? The enormous reach of intelligence tools does not stop at national borders, no matter which country is carrying out the surveillance. In recognizing a mutual need for information and intelligence, countries can and do agree to share what they know. However, information is a powerful resource and thus not easily surrendered.

The dispute that has come to the surface in this transatlantic discord is in part a clash of world views and assumptions about both responsibilities and accountability. The United States holds the assumption that it has the responsibility to observe the entire globe for both its own interests and its security, and it possesses the capability to carry that perceived responsibility out. Yet if the United States wishes to insist that it is an exceptional national leader on the world stage, it needs to have an exceptionally strong commitment to living up to the standards it espouses for itself and for others, while monitoring closely where it comes up short. America needs partners that it shares a mutual trust with in order to gain support to meet tomorrow’s challenges successfully. Not all countries are interested in cooperating, but all are vulnerable and all have a stake in sharing ways to protect our shared privacy and security. There are threats as well as opportunities in crafting a path forward together, and such an arrangement cannot be taken for granted.

Germans, like Americans, worry about the invasion of their private space and are adamant about the limits of government intrusion. But while Americans seem to be less upset about surveillance outside the United States, the German reaction is far more sensitive—this having much to do with the experiences of the recent past in East Germany as well as in the Nazi dictatorship. They are furious with being singled out in the documents revealed in the press as objects of massive surveillance by the U.S. The attitudes reflected in both the language and tactics within these documents depicting a mix of hubris and condescension only serve to fuel such anger. Nevertheless, as a former front line in the Cold War, Germany can hardly deny that intelligence gathering is a necessary tool in the real world. Still, Germans and other Europeans are rightfully upset in learning that they are not in control of their privacy.

The current crisis is now one of mistrust. It is affecting both our domestic debates as well as relations across the Atlantic by undermining the basic foundation of these relationships. With Germany’s unification in 1990, Americans and Europeans believed in a shared goal – a commitment to the alliance and a willingness to build upon that accomplishment by creating a larger transatlantic community. The path was not always an easy one, but it seemed that the larger shared goals always overshadowed the interim arguments about how to fulfill them. Maybe this current crisis will be another case in which arguments can be managed and consensus reached. But it has to be based on trust in a shared outlook on both goals and means, a notion that must be shared by both leaders as well as the public. Neither can nor should be taken for granted.
Additional analysis on the NSA leaks:

“Diplomatic Fallout: Experts Warn of Trans-Atlantic Ice Age”, by Gregor Peter Schmitz, Spiegel Online, July 1 2013

 

  • Uli Finkenbusch

    With the NSA sniffing scandal, European trust in the US took one in the gut. The damage to transatlantic relations notwithstanding, it is surprising how little Americans seem to mind the invasion of their own privacy. While 95 out of 100 US senators appear willing to personally take a bullet to protect the second amendment on gun ownership, the fourth amendment on the protection of privacy died a fast and quiet death after 9/11. Within the never ending debate on the balance between security and liberty (i.e. privacy), the current US data collection seems excessive and out of proportion. Fortunately, the US has a working political immune system which will allow for itself to correct this wrong. Just like in the wake of the McCarthy era in the 1950s, the pendulum will eventually swing back from paranoia towards greater respect for privacy. Even the spooks will eventually admit, that in order to “connect the dots” on terrorists, they do not need to know with whom all law-abiding citizens correspond with electronically or call on the phone.

  • K Bledowski

    @Uli
    Not a month goes by without my reading in the European press about arrests of would-be terrorists, this over the past several years. How did law enforcement learn about them? Were they speaking loudly about planning a sinister attack on a street corner? I doubt it. More likely, their internet traffic, emails, and phones were intercepted, violating their privacy. Maybe they got tips from the U.S., in other ways “tapped the American databases”? Let’s make this clear: the privacy of Europeans is violated daily on a massive scale by their own governments. This happens to Americans, too. Could it be that the Europeans prefer not to admit that it takes place in their own lives?

    As to the “European trust in the US took one in the gut”, perhaps it did. I’d say, unnecessarily so. Here is a statement from the former CIA-equivalent of France’s espionage agency commenting on the U.S.: “in economics, we are competitors, not allies” – this after implicitly admitting massive French espionage of U.S. interests, confirmed later by both sides. Declassified files of widespread eavesdropping of just France against U.S. interests date back decades. Perhaps the U.S. media chose not to make much fuss about them and endanger “U.S. trust in France” as an ally … It’s clearly not in the U.S. interests to stoke up anti-European feelings.

    Jack Janes raises more relevant points. The broader question is the emerging gulf between the Americans’ embrace of Big Data and Europeans’ disdain for it. This brings an eerie recollection of European scorn heaped upon the newly emerging concept of the “internet” several decades ago. History was not kind to those to failed to jump in early. Today’s European scorn heaped upon Microsoft, Amazon or Apple is the flip side of inability to compete in this new marketplace.

    Big Data is the next big thing. It promises to bring in value where none had existed just decades ago. Facebook, Google, and others are early winners; more will surely emerge. I recently conducted a webinar on Big Data for senior American executives and the number of attendees surpassed my wildest expectations. When productivity gains beckon, smart money listens.

    If Europe sleeps this one over, again, it will only have its conservatism and “privacy fear” to blame.

  • Rob Houck

    I have watched this topic developing for years, including a visit to Stasi Headquarters 15 years ago and their prison at Balzen. I fielded questions from concerned German businessmen years before any Americans taliked about internet privacy. When Congess recently reacted to snooping by refering to Americans’ Constitutional rights, I posted questions about rights of non-citizens. I recall hearing stories years ago about bugging business class passengers on Air France. Israeli attacked the USS Liberty in 1967, killing 17 of our sailors and injuring 50 or thereabouts, reather than letting their closest criend moniter their war. About 2004 I heard from a State Department friend about a decoded conversation between Ambassador Ischinger and Chancellor Schroeder. I was amazed to see the distinct outlines of warm human beings (and house pets I presume) as helicopters flew over Boston recently. But I am – I admit – still shocked at the extent of the data collection. I have been in Germany for the last 2 weeks, meeting with other lawyers and businessmen. Some are shocked and angry. Others are calmer, less surprised, but still very unhappy. I asked whether Germany and other EU powers would establish their own internet. No. The most I heard was that some cell phone users would switch to Deutsche Telkom. Law firms will be more careful about encription and cloud computing. More powerful encription tools were suggested but they seem unlikely. At the end, it seems to me that no treaty is a solution. Agreements cannot be relied upon when issues of national interest (of any kind) are at stake and when breaches are hard to detect. I think Europeans and others simply have to assume that nothing is secret. The question is only how many people have access to it and how will they use it. As a lawyer, I hope this means I will have more 1:1 meetings with my clients and not just e-mails. Human contact and trust is more important than ever. This is a preliminary reaction. I thank Jack for addressing this issue and look forward to reading more here. (This was composed on an iPhone after a 9 hour flight from Stuttgart, so please excuse the rough edges.)

  • K Bledowski

    Jack Janes has titled his post right: it’s a matter of trust, in its many dimensions.

    It’s about trust between allies that, co-snooping notwithstanding, big data have value when kept to oneself and value when shared; trust will determine how much of it is shared.

    It’s about trust between the electorate and judicial oversight of overstepping the laws – very much a domestic issue that is difficult to internationalize.

    Finally, – Rob Houck is on the money here – it’s about trust “beyond the treaties” when imponderables determine cooperation.