Obama's Totalitarian Turn

The U.S. president has lost sight of the knowledge that spying on citizens has nothing to do with freedom. Angela Merkel needs to remind him of that.

The end of privacy has been frequently lamented already [and] just as frequently disputed, but as of yet has seldom been defended so confidently: “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience.”

This sentence of U.S. President Barack Obama contains two misrepresentations; one could also speak of lies. No citizen — not in the United States and not in Germany — demands 100 percent security because he knows that it is not to be had. Only nations and governments foster new security laws, justifying them with a promise that goes against better judgment.

And no halfway enlightened citizen — neither in the U.S. nor in Germany — will still assume today that his privacy is 100 percent protected. But every citizen in a democracy can expect that the government will not 100 percent destroy his privacy to establish a 100 percent functioning security apparatus.

Nothing less is happening in the U.S. since the terror attacks of Sept. 11, 2001, when a security apparatus was erected by the Patriot Act which evaluates every citizen as a suspect, his privacy as the refuge of potential criminals and personal data as criminal trails. Since a few days ago it has become clear which communications on the Internet, which stored pictures and which posts on social networks the U.S. National Security Agency accesses: all of them.

Primarily Germans Are Affected

And it is also clear which of the firms forced to allow the use of their servers — Google, Apple, Facebook, Microsoft, YouTube, Skype and Yahoo — refused to cooperate with the intelligence services: none.

To be sure, the U.S. government attests that only foreigners were listened in on and spied upon, that is, no U.S. citizens. But first, that is apparently untrue; second, it’s no consolation for the foreigners involved. And the Germans are primarily involved. No other country is as unrestrainedly spied upon by the U.S. intelligence services as Germany.

Seldom was a decision of the [German] Federal Constitutional Court so radically denied by reality than the 1983 decision about the right to informational self-determination: “The basic right warrants in this respect the capacity of the individual to principally determine the disclosure and use of his/her personal data himself.”

This basic right has been curtailed again and again over the last decade by the German legislature, ridiculed by politicians and derided in editorials. But every German could invoke it in Karlsruhe. However, no legal process against the investigations by the U.S. intelligence services is open to Germans — neither an American nor a German court will accept his lawsuit.

Nevertheless, the government — more precisely the executive branch — is obligated to protect its citizens from criminal investigation and to prevent federal territory from being transformed into an extralegal zone for U.S. intelligence services. Paragraph 201 of the German Criminal Code is: “1. Whoever, without authorization: 1. makes an audio recording of the privately spoken words of another; or 2. uses, or makes a recording thus produced accessible to a third party, shall be punished with imprisonment for not more than three years or a fine.” Likewise, “2. Whoever, without authorization: 1. listens with an eavesdropping device to privately spoken words not intended to come to his attention … shall be similarly punished.”

Hopes Are Pinned on Snowden

President Obama references justification of his intelligence services’ theft of data with the American legal position. At her meeting with Obama, Federal Chancellor Angela Merkel should — no — must explain to him the German legal position with the help of the criminal code. She is not only receiving the president of the United States, but a former constitutional lawyer whose election to the presidency was not least of all thanks to the insight: If the only secret protected by the government is the secret investigation of everyone, that is not freedom; it is totalitarianism.

This insight is apparently lost on Obama, but not on Edward Snowden, the young computer specialist who betrayed the secret of the collective spying by the National Security Agency and since then has found himself on the run. Asked about the motives for giving up his middle class life and placing himself against the security apparatus as a whistle-blower, Snowden, who presumably never listened to a lecture on constitutional law, answered, “I think the public is owed an explanation of the motivations behind the people who make these disclosures outside the democratic model.”

U.S. authorities may consider Edward Snowden to be a criminal. But the hopes of a democratic society are pinned on him.