Chaos Computer Club files criminal complaint against the German Government | Hacker News Reader

Chaos Computer Club files criminal complaint against the German Government

ccc.de

473 pointsbachback40 comments

Yes! _IF_ this isn't immediately shot down, things will become interesting.

The German officials can always hide behind police/antiterror investigations for data they requested, HOWEVER: The collecting and storing of user data and metadata "verdachtsunabhängig", that is, without there being a investigation against the people whose data is being slurped specifically, is highly problematic under German law.

That is the vulnerable spot the CCC is trying to hit and I hope it works.

I don't think they can hide behind antiterror investigations. Main allegation here is that foreign espionage has been facilitated (which is illegal) and that knowingly is nothing done against it (that's also illegal under the term "Strafvereitelung"). This is definitely somewhat different from surveillance allegations which indeed are more politically inclined and can be argued under antiterror investigations. If state authorities would knowingly support industrial espionage they can get a hard time if it is possible to collect hard evidence for it (I doubt that).

Another somewhat interesting twist of the German legal system that might play a minor role here is the Legalitätsprinzip (https://de.wikipedia.org/wiki/Legalitätsprinzip).

The problem that this criminal complaint will face is the "Alliiertes Vorbehaltsrecht".

"erstens der Überwachungsvorbehalt, das Recht, den in- und ausländischen Post- und Fernmeldeverkehr in der Bundesrepublik auch weiterhin zu überwachen; zweitens den Geheimdienstvorbehalt, das Recht, die alliierten Geheimdienste mit Unterstützung des Bundesamtes für Verfassungsschutz außerhalb des deutschen Recht zu stellen, wenn es geheimdienstliche Interessen erforderte."

"firstly, the surveillance exception, the right to continue to monitor the domestic and international postal and telecommunications traffic in the Federal Republic, and secondly the intelligence exception, the right to the Allied intelligence with the support of the German Federal Office for Protection of the Constitution to act outside the German law if intelligence interests requires so."

While the "Treaty on the Final Settlement with Respect to Germany" is considered to have made Germany become fully sovereign, the "Alliiertes Vorbehaltsrecht" is still in effect according to [1] and [2] (both links in German only, sorry, there seems to be no online source in English).

[1] http://de.wikipedia.org/wiki/Alliiertes_Vorbehaltsrecht [2] http://www.zeit.de/politik/deutschland/2013-10/nsa-uerberwac...

Is there any proper source for this?

The wiki page states that the Alliiertes Vorbehaltsrecht ended when Germany was reunited in 1990. The only sentence indicating anything else seems to be a reference to some "secret contracts seen by Josef Foschepoth", but with no further details.

This is the same author that is being interviewed in your second link, so it sounds a bit like this is just one guy trying to sell books...

The Wikipedia article I linked explicitly says it didn't end when Germany was reunited in 1990 ("Sie gelten weiterhin.", last sentence). But you are right in that all sources originate from the historian Josef Foschepoth. If it is one guy trying to sell books or one guy speaking an inconvenient truth, I don't know. If someone can point to an independent source I would be grateful.

There's a big debate whether those secret treaties exist and if they do, whether they say what Foschepoth says they do - i.e. if they allow spying on all german citizens by allies secret services - and if they allow it, whether the german government can sign (secret) treaties that violate principles of the german Grundgesetz (constitution). See for example this blog post http://www.internet-law.de/2013/10/darf-die-nsa-in-deutschla... and the following discussion.

So if the lawsuit ever makes it to court, these questions need to be debated - and I'm very interested in seeing the result.

Edit: Just for clarity: The situation may be quite well that currently the german governments allows allies surveillance based on contracts that are illegal in itself.

This is the stuff of conspiracy theories. The German constitution is pretty specific when it comes to whether and how the government can limit fundamental rights.

Article 10 of the Basic Law says that "telecommunications privacy shall be inviolable" and that "restrictions may be ordered only pursuant to a law". Secret agreements are no laws, so they cannot give the government the right to enact restrictions on telecommunications privacy. This requires a law passed by the German parliament following normal procedures (such as the G10 Act).

Prior to 1991, there might have been a (weak) international law argument based on Germany's limited sovereignty, but since 1991, this doesn't work, either.

The links you give rely entirely on the assumption that secret agreements can have the force of law; they do not.

This is great news, we should be on the offensive.

The system of getting our rights taken away away, and the have to fight for get them back makes no sense.

Disclaimer: I do very little for my own rights.

the germans have a saying:

"was nicht passt, wird passend gemacht"

in my opinion the same will happen here. if the laws don't fit, the laws will be adjusted, or the terminology will change. it happened with the now no longer unconstitutional wars. and obama said the same:

"we're not really spying on you guys, we're just helping our allies"

you have to applaud the germans for their efforts though. after all they were able to temporarily halt the data retention efforts. i say temporary, because i'm convinced that even if the european court of justice really bans it(which i'm not convinced of), it will be even more crucial for them to have someone from the outside spying.

and besides that there is this rather worrisome notion in politics and lobbyism that a no in court only stays no until you turn it into a yes.

Laws can't be changed retroactively, so I hope they won't get through with it. I just fear they'll grant immunity to those involved, or find some other way around.

In most of Europe, actually, laws can be retroactive... What is forbidden is a harsher criminal law. For example, creating an incrimination by law after a crime has been committed is a harsher criminal law and is forbidden. But if the legislator wishes to repeal a criminal law, the new softer law can be retroactive. It's called retroactivity in mitius.

I don't know if it's the same in Germany, but it's probable[1]. If so, then yes, the german legislator can make this case disapear completly by making the laws on the subject softer.

[1] Actually, I used to think that this rule was universal, because it seemed to be common sense... but that rule might not exist in countries of Common Law ?

Sure the law will be adjusted but having the CCC directly involved in the trial we'll see some interesting details and backgrounds explained.

I'm curious how the german media will handle it. It's Top-News atm on the main public broadcasters (also on their homepages http://www.tagesschau.de/ http://www.heute.de/ 2nd one is ZDF. Close to the ruling CDU party). So I guess it will survive till the 8pm news. The trial coverage will be a different topic though.

First, it must be brought to trial. The first step is investigation by the state attorney and I would be very surprised if it wouldn't be struck down at that stage. State attorneys in Germany are not independent (unlike judges) but bound to supervisory advice, in this case the department of justice (afaik).

Sure but since they have been working as expert witnesses for the government and similar and they know what they are talking about, it will be hard for the state attorney to make it disappear.

Media will play a major role here too and if you consider the juristical failures in Bavaria and the media coverage there, it would be pretty stupid for the state attorney to try something questionable here.

"the germans have a saying [..] if the laws don't fit, the laws will be adjusted, or the terminology will change"

They are correct, and it happens worldwide. It leads to the conclusion that unless you are too big to fail/be touched, no one really lives in free and democratic countries.

You use the word democratic, but in a context where you don't mean that word. Courts are antidemocratic. I can't speak to the politics in Europe, but e.g. in the U.S., the law insulates from what people want to otherwise do. For example, after 9/11, you probably could have gotten majority support for restrictions on Muslims. The law tends to insulate from that, or e.g. the mob outrage over the financial companies after the recession. Having money allows you to more effectively use the law to insulate yourself from democracy.

With regards to spying, the people seem broadly okay with spying. At least in the U.K., the popularly elected government just filtered their internet, and support for CCTV is widespread. That's why the minority who oppose surveillance in principle try and use the law to counter the majority will. If the laws get changed to ratify the status quo, that's not antidemocratic.

What unconstitutional wars?

The modern German constitution was suppossed to make it very hard to go to war. (Basically only if Germany was attacked.)

"We accuse US, British and German secret agents, their supervisors, the German Minister of the Interior as well as the German Chancelor of illegal and prohibited covert intelligence activities, of aiding and abetting of those activities, of violation of the right to privacy and obstruction of justice in office by bearing and cooperating with the electronic surveillance of German citizens by NSA and GCHQ."

This reminds of Wyden and Udall's recent inquiry into whether CIA is hacking into American citizens' computers and violating CFAA. While I'm sure CFAA has exceptions for the federal government to do those "crimes" themselves (although not sure if the CIA is allowed to, since they are supposed to act only on foreign territory), I think Wyden and Udall are trying to use this inquiry to let the American people know that they are doing this, without actually saying it outright.

http://www.techdirt.com/articles/20140130/10052526049/wyden-...

> It is unfortunate that those responsible and the circumstances of their crimes have not been investigated," says Dr. Julius Mittenzwei, attorney and long time member of the CCC.

This is great news. I'm sure they thought they were going to get away with it.

Dr. Mittenzwei, on the other hand, has better plans for them.

The complaint is directed against the German federal government, the presidents of the German secret services.

Can we in USA sue the president and Feinstein for crimes like they can?

Yes and no, I'd suggest reading about sovereign immunity in the US: http://www.law.cornell.edu/wex/sovereign_immunity

The german regime has immunity too.

I don't think, if they get sued and lose, any individual will go to jail. But some legal entities will be in big trouble.

Sovereign immunity protects the state, as a sovereign entity, from suit. It doesn't protect individual agents of the government. Public officials generally enjoy immunity from civil suits for monetary damages to the extent that they are acting in their public capacity and not violating clearly established law. They are not immune from criminal liability.

The "clearly established law" part is usually the catch. I'll use Obamacare as an example. Say Obamacare had been found unconstitutional. Could businesses have sued Kathleen Sebelius for the money they spent in preparation for implementing this unconstitutional law? There are probably a number of reasons why not, but one of them is that she is protected by immunity because the question of whether Obamacare was a valid exercise of Congressional power was not "clearly established." Sovereign immunity would not protect her, because she is an agent of the government, not the government itself. In the context of NSA spying, there's quite a bit of debate on the legality of various programs, so that would not be considered "clearly established" either.

This is great news, unfortunately neither the German government nor the Federal Prosecutor General (Generalbundesanwalt) will have the balls to bring this to court.

Furthermore the Generalbundesanwalt is nominally independent of the government, but is traditionally very close to official politics.

A good thing by itself but I doubt it will have a real effect other than showing that "Separation of Powers" in theory works much better than in practice... (read "not")

Besides, for some reason complaints against the state via the state take years, just see the ongoing complaints whether EFSF, ESM and whatnot market stabilization mechanisms violate the no-bailout clause in the EU treaty.

Game theory is a bitch :(

And don't even get me started on the legal immunity of the (not democratically elected) governors of the ESM that have the power to demand more money (for ESM and themselves) no matter what...

Remember to watch the video footage from the latest CC congress if you haven't done so already: http://media.ccc.de/browse/congress/2013/ They cover really interesting topics.

The CCC is a club Germans should be proud of.

At least this story didn't devolve into dismissive conversation about irrelevancies, like the Snowden interview story. In that thread, discussants invented a new notion of "journalistic equivalence" under which mass media news coverage of remarks by Snowden that officials were calling for his demise was supposed to be somehow equivalent to substantive coverage of the main points of the interview. The "proof" of this was the so-called "Reddit takedown."

Great effort! I wish them good luck, and hope this will go anywhere.

Hope this will finally make a difference after seeing nothing happen even after the drastic revelation by Edward Snowden.

The local news station talked about this today. They described it as a group of "lawyers and computer hackers" suing the government. I get what the CCC is, but I'm thinking the average member of the public is rolling their eyes at a bunch of criminals suing the government of surveillance.

my local news station (Bavarian public radio) almost exclusively used the term "civil rights activists".

I couldn't help but read the "ILMR" typo in the first sentence of this article as, "International League for Machine Rights".

Internationale Liga für Menschenrechte.

I really hope this will back the politians in a corner and shine some light on what Germany is gathering and sharing with its so called allies.

This is awesome.

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