It has been called the "Big Brother" law in the German media due to its provisions allowing online and telephone surveillance. The Interior Ministry in Berlin describes it as a necessary step to protect the country from the dangers of international terrorism.
But journalists in Germany see the bill -- currently in the parliament's arbitration committee after having failed to get through the country's upper legislative chamber, the Bundesrat, in November -- in a different light. They are concerned the law would make it much easier for investigators to spy on reporters without their knowledge, giving the state access to both their computer files and their sources. That, they say, represents an unacceptable attack on freedom of the press in Germany. Publishers, journalists and media lawyers are up in arms.
This law "is one in a series of so-called security laws that have one thing in common: They endanger the freedom of the press and especially investigative journalism," Wolfgang Krach, managing editor of the influential daily Süddeutsche Zeitung, told SPIEGEL. "This is not a case of a profession selfishly looking for extra privileges. Rather, journalists want to be conferred the rights guaranteed them by the constitution and to be able to fulfil their role unhindered."
The Right to Protect Sources
The law in question would significantly increase the investigative powers of Germany's Federal Criminal Police Office (BKA). Investigators would be allowed to tap the phones of terror suspects, film their homes, track their mobile phone signals and even send Trojan viruses to suspects' computers allowing investigators to install "Remote Forensic Software" and clandestinely search through hard drives.
More to the point, though, Paragraph 20 of the law would significantly weaken journalists' rights to protect their sources, say media professionals.
German law until now has lumped journalists together with doctors, lawyers, politicians and priests -- the secrecy of what they discuss with their sources, clients and flock, respectively, has been legally protected. The new law would break that group into two categories. Clergymen, politicians and defense attorneys would remain fully protected.
When it comes to journalists, doctors and lawyers, though, investigators would be allowed to monitor their phone calls and search through their computers if they saw a "public interest" in doing so. In other words, probable cause would no longer be necessary; the law would give German authorities the right to spy in the name of security.
'Democracy Needs Critical Journalism'
"Journalists' ability to protect the identity of their sources would be severely weakened if the law is passed as it is currently formulated," Hendrik Zörner, spokesman for the German Federation of Journalists, told SPIEGEL ONLINE. "Informants will no longer trust that their communication with journalists will remain secret and they won't pass along information anymore. That will result in less critical journalism -- and democracy needs critical journalism."
Germany's Interior Ministry, which has been pushing for the law as a necessary tool in the fight against terrorism, says the criticism of the law is misplaced. "The draft law is very narrowly focused on the defense against international terrorism," Markus Beyer, a ministry spokesman, told SPIEGEL ONLINE. "The authority granted by the law is already anchored in laws currently in place in German states."
Yet according to media law professionals, the draft law has serious implications for journalists. The law, media lawyer Johannes Weberling told SPIEGEL ONLINE, "would rock the very core of what journalism stands for." Because investigators would no longer need to show probable cause before initiating surveillance, Weberling says, the law would make sources think twice before speaking to the press.
"One of the media's roles is that of a watchdog," Weberling says. "The ladies and gentlemen in politics need to understand that there is a separation of powers in this country and that a free press is a vital component of that separation. It is incredibly irresponsible to destroy this watchdog function."
Just how to defend the country from a potential terror attack has been a topic of debate in Germany for some time. Interior Minister Wolfgang Schäuble, of Chancellor Angela Merkel's Christian Democrats (CDU), has long argued that Germany needs to intensify domestic security. Many of his proposals, including domestic deployment of the military and giving the air force the right to shoot down hijacked planes, have proven extremely controversial. His department's plan to secretly install spy software on suspects' computers using Trojan viruses likewise resulted in a nationwide furrowing of brows.
Still, the security package now under consideration has received widespread support from Merkel and the rest of her conservative party. After months of debate, Merkel's coalition partners from the center-left Social Democrats likewise signed on. In November, when the law went before the lower house of parliament, the Bundestag, it passed easily in a 375-168 vote. The upper house, though, rejected it on the strength of opposition from the business-friendly Free Democrats (FDP), the Greens and the Left Party. Some Social Democrats in the Bundesrat likewise voted to torpedo the law.
"Each instance in which a citizen no longer feels safe passing along information about a grievance to the press and thus the public, represents an erosion of democracy," the FDP said in a statement.
Nevertheless, the primary reason for the law's rejection had to do with a passage relating to whether courts had to give their approval for certain surveillance activities. The implications for press freedom were hardly mentioned. A compromise is expected on Wednesday with lawmakers hoping to pass the law by the Christmas break so it can go into effect in 2009. Most observers expect changes to be minor, and the parts related to journalists and their sources will likely remain untouched.
German media protests have been muted. Most papers have run back-page stories on the law's implication for press freedom and journalist associations have issued press statements condemning the law. The Federal Association of German Newspaper Publishers called the draft law "an affront to the press" and said it is "concerned by the climate created by the government in which freedom of the press plays only a subordinate role."
But despite the lack of coordinated protest, many see the law as the next step in the German state's confrontation with the press in the name of security. In April 2005, the monthly newsmagazine Cicero published a story on the Islamist terrorist Abu Musab al-Zarqawi in which it quoted from a top-secret report from the Federal Criminal Police Office. Soon thereafter, the authorities searched the magazine's editorial offices and the apartments of its editor in chief and of the story's writer, apparently trying to find out who leaked the report to Cicero. Germany's highest court later declared the search to have been unconstitutional.
The new law, though, could very well accomplish the same goal in a much less dramatic fashion: remote data mining instead of editorial office raids. Either way, say many of Germany's top journalists, the effects will be the same.
"There are many ways to prevent investigative journalism," Bascha Mika, editor in chief of the daily Die Tageszeitung, told SPIEGEL. "The easiest is to scare away informants. The planned law will certainly have that effect."
Media lawyer Weberling, who represented the writer of the Cicero story Bruno Schirra, says that he expects the new law, should it pass, to ultimately wind up in Germany's high court. "We will be looking for appropriate cases to challenge the constitutionality of the law if it goes through," he said.
With reporting by SPIEGEL staff