It may soon no longer be a good idea to tell a journalist something confidential over the phone in Germany. It would also perhaps be prudent to avoid sending e-mails, faxes or text messages. In the future, sources might be better off furtively intercepting reporters on their way home, writing letters, or sending smoke signals.
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.
Now, the media experts of the SPD parliamentary party -- Jörg Tauss, Monika Griefahn and Christoph Pries -- see "an urgent need" for "significant changes" in the bill proposed by their fellow party member, Justice Minister Zypries. In a letter dated Oct. 19 and addressed to deputy head of the SPD parliamentary group Fritz Rudolf Körper, they warned that the new regulations would "structurally and fundamentally damage the trusting relationship between sources and the press."
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.
'The Free Press is Facing a Devastating Blow'
A further amendment to the bill has been pushed through by Siegfried Kauder, a legal expert in the CDU parliamentary party and the chairman of the parliamentary committee investigating the German foreign intelligence agency (BND). It was Kauder who sought to uncover media leaks from the committee, a move which led to state prosecutors pressing charges against a number of journalists.
Kauder has proposed that so-called coincidental discoveries made during police searches of media premises and confiscated material may not as a rule be used in subsequent legal proceedings, unless they are linked to cases of serious misdemeanors or felonies.
Moreover, he adds that the classic case of suspicion of divulging state secrets has been explicitly removed from the proposed legislation: "The original draft would have made journalists worse off. This amendment improves their legal position," says Kauder.
However, the coalition is still unwilling to abandon the idea of granting journalists fewer privileges than members of parliament, the clergy and defense lawyers. The idea is that journalists should receive only second-class rights to refuse to give evidence.
Many politicians have a hard time seeing much of anything worth protecting in the work of journalists. This may be partly due to the fact that the relationship between politicians and journalists has been extremely strained over the past few years. Politicians complain of inaccurate research and the dogged focus on exclusive stories. They have had their share of bad experiences with sensationalist journalism and would like to see more explanatory journalism.
For a long time now, journalists have come under growing pressure from state prosecutors who try to use them to gain access to informants. And all this has been taking place amid an atmosphere of growing competition in the media world. This is precisely why ZDF editor-in-chief Brender is so upset about the politicians' lack of sensitivity as they chip away at the confidentiality of sources. "These days, with the free press already treading on thin ice, this is a devastating blow."
Meanwhile, the main target of the criticism doesn't understand what all the fuss is about. Justice Minister Zypries feels that she has been woefully misunderstood -- and treated rather unfairly.
After all, the whole thing was not her idea, but rather a European guideline.
Zypries says that mandatory data retention needs to be implemented as part of an EU directive. She explains that it is only thanks to her and her ministry that the new proposed regulations are not considerably more far reaching: "We fought virtually alone in Brussels and won concessions from the other member states."
And then she lists the concessions. Originally, every unsuccessful phone call was to be entered into the record. Now, attempted phone calls play no role in the EU directive.
What's more, the six-month retention limit in Germany "is at the lower limit" for the implementation of the directive, says the minister. She points out that in other European countries the retention limit extends as far as 24 months. In addition, she says that the proposed law in Germany clearly states that "those affected will be notified later and the retained data will be erased."
Ireland is even going one step further by challenging the data retention directive before the European Court of Justice (ECJ). But that, according to Zypries, has never been a viable option for Germany: "We wanted to play an active role and prevent unacceptable maximum demands instead of sulking in the corner with no means of influencing the legislation."
Pulling a Fast One on the EU
Many opponents of the bill, including representatives of the telecom and Internet industries, argue that it would be better to wait at least until the ECJ issues a ruling in the spring before investing hundreds of millions of euros. But the Justice Minister will hear nothing of it -- despite the fact that she has made similar objections to the controversial proposal by Interior Minister Wolfgang Schäuble to introduce online searches of suspects' computers.
Zypries explains that, in contrast to the online search debate, the Irish legal challenge before the ECJ is a purely procedural matter. Ireland actually backs the principle of data retention and is merely contesting the way this European legislation was passed -- not the actual contents of the EU directive.
The fact of the matter is that proponents of the directive pulled a fast one at the EU level. Instead of calling the data retention regulations a crime prevention initiative, they billed it as a series of measures to foster the internal market.
There was a special reason behind this labeling switcheroo. A framework decision on combating crime would have required a unanimous vote by the Council of Ministers. This trick made it possible to sidestep small countries like Ireland and Slovakia.
Nonetheless, the protests appear to have made some impression on the justice minister after all. Quietly, a number of articles in the original draft have been changed again. The ministry is inching its way forwards, slowly but surely.
History has shown that there are good reasons for the concerns and suspicions of journalists and publishers with regard to the new data collection mania. The powers of the state have always been only too eager to tighten the reins on journalists.
From the SPIEGEL affair in the early 1960s to the illegal search of the editorial offices of the monthly political magazine Cicero in 2005 and the recent investigations of 17 journalists who cited confidential documents from the ongoing BND investigative committee -- the goal has always been to track down leaks in the state apparatus.
And when state authorities intervene, they are not only -- as politicians invariably maintain -- seeking to combat terrorism or avert major threats.
Recently, the higher regional court in Dresden gave the district court in Chemnitz a dressing down for allowing investigators to check the mobile and landline phone calls made by a journalist working for the Dresdner Morgenpost.Law enforcement officials wanted to find out who had leaked the time for a planned search of the residence of former Saxony Economics Minister Kajo Schommer. The next day, there was a picture of Schommer in the paper, in his pajamas.
Which all proves at least one point: If the authorities want to access data, they will invariably do so.
In Dresden the court ruled that the protection of sources is vital because the press depends on information from private individuals. According to the judges, this information only flows freely if sources can depend on journalists to maintain the confidentiality of their sources.
"Up until now, public prosecutors have made a few dents in reporters' privileges, but the courts have always managed to hammer them back into shape," says a legal adviser to the German Journalists Association, Benno Pöppelmann. "However, what we could be facing now in the area of law enforcement investigations is a total smash-up that can't be fixed."