By Markus Brauck, Marcel Rosenbach and Markus Verbeet
Press freedom in Germany is under attack.
As of Jan. 1, 2008, this kind of cautious behavior may be advisable -- that is if the German parliament, the Bundestag, approves a bill next week that would effectively remove all protection of journalists' sources when it comes to telecom and Internet communications.
If this happens, all newspapers and magazines will perhaps also be well advised to print warnings like the labels found on pharmaceutical and cigarette packaging: "Caution -- an effective protection of sources can no longer be guaranteed."
"An enormous hole is being torn in the freedom of the press," says Christoph Gusy, an authority on constitutional law and an expert witness at the parliamentary hearing on the topic of mandatory data retention. "Protection of sources will be largely left up to the judgment of law enforcement agencies. This de facto puts an end to confidentiality."
Nikolaus Brender, editor-in-chief at Germany's ZDF public television network, warns: "If the state holds confidential information for a period of preventive detention, this amounts to an attack on the very foundation of our work."
At issue here is a fairly unwieldy piece of draft legislation, namely an amendment to Germany's law on telecommunications surveillance. The government proposal submitted by Justice Minister Brigitte Zypries calls for telecom providers to retain all communications data from their customers, all landline and mobile calls, faxes, text messages and e-mails. This would mean that all electronic communications in Germany would be recorded, whether the parties concerned are under investigation or not.
Germany's surveillance mania concerns everyone in the country, but when it comes to journalists it concerns the way they do their job. Data protection advocates call mandatory data retention an excessive and constitutionally dubious measure. Critics say that it would violate the principle of communications secrecy and the right to privacy in the information age.
The issue becomes even more troubling when the data retained involves journalists and, by extension, freedom of the press. Although the proposal has been cloaked in somewhat dense legalese, its consequences are actually quite simple.
Most members of the general public have yet to realize that the Justice Ministry wants to introduce two levels of the right to refuse to give evidence during judicial proceedings.
Opening up a Gateway to Journalists' Information
Defense lawyers, parliamentarians and members of the clergy would enjoy the top level. As a result, they cannot be wiretapped and their communication data would also be off limits.
Journalists, however, would only be second-class bearers of secrets. Their right to refuse to give evidence, and thus effectively protect the confidentiality of their sources, would be eroded.
According to a vaguely worded and dubious paragraph in the bill, it would be up to the discretion of an investigating magistrate to take a journalist's right to refuse to give evidence and weigh it up against the interests of the prosecution.
Former Justice Minister Sabine Leutheusser-Schnarrenberger of the business-friendly Free Democrats (FDP) sees the proposed legislation as "opening a massive gateway to access information that journalists possess, and then decide if it may be used or not." But constitutional law expert Gusy feels that by then it would already be too late: "There's not an investigator in the world who would spontaneously forget new information that he has discovered."
The plan would be a crushing blow to the media. Absolute source confidentiality forms the very foundation of investigative journalism. Who would pass on sensitive information, especially from a government agency, if they assumed that the police and domestic security officials were recording everything? With laws like this on the books, would it have been possible for journalists to blow the lid on the VW scandal, the Siemens corruption affair, or the wrongful detention of Murat Kurnaz? Are politicians punishing the nation's watchdogs and whistleblowers with this proposed legislation?
"This will clearly result in sources being more cautious," says Leutheusser-Schnarrenberger. "If sources have any doubts, they will tend to withhold information. This will make investigative journalism more difficult, especially when it concerns the surveillance of the state." For months, media organizations have been working behind the scenes to block the proposal. Often at loggerheads, the issue has galvanized the press into united action. The media have formed the broadest possible coalition, with a range of members that includes everything from public networks to private broadcasters, from magazines to newspaper publishers, from the German Journalists Association to the Verdi trade union.
In a joint statement, they urgently called on the German government "not to pursue this path." Slowly but surely, they are getting a response from members of parliament. Slowly but surely, the politicians in Berlin appear to comprehend what is at stake.
Over the coming days, media organizations intend to exert even more moral pressure on lawmakers. They plan to send a letter to all legislators in the capital expressing "their grave concerns" over the planned amendment.
Gradually, media experts in the ruling coalition are waking up. Belatedly, very belatedly indeed, they have apparently noticed the explosive nature of these vaguely worded phrases.
Behind the scenes in the grand coalition, the SPD and the CDU are engaging in some last-minute haggling, and one of the main bones of contention is the right of journalists to refuse to give evidence. The politicians see that something has to be done here. They are reflecting, hesitating, searching for compromises. Freedom of the press has become another item for coalition horse trading.
They may only be inching their way forwards -- but at least they are moving in the right direction.
Currently, it looks as if they may agree to new limits on how much access law enforcement agencies are allowed. According to this new proposal, investigators would only be allowed to examine the communications data of reporters if they were suspected of being involved in a serious criminal offense -- and would only then be allowed to infringe upon the confidentiality of a journalist's sources.
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