Germany's Security Services Must Look to Britain for Inspiration

Berlin Christmas Market Attack Police
Police patrol at the re-opened Christmas market at Breitscheid square in Berlin, Germany, December 22. Hannibal Hanschke/Reuters

That the German authorities appear to have originally arrested the wrong suspect following the attack on Berlin this week is embarrassing. But what is really serious is the fact the attack happened—that the coverage of people who might carry out this atrocity was not sufficient to predict it, and that the level of security was less than it could have been for such a public space. There was a security awareness deficit.

There are a combination of factors that make counter-terrorism difficult in Germany today. Large numbers of refugees have arrived recently, many of whom are not fully documented and among whom are some violent extremists. But coupled with that, you have a counter terrorist operation on mainland Europe that is not utilizing all the measures possible, including digital intelligence, in the way the British authorities are.

The powers that are contained in Britain's Investigatory Powers Act, passed last month, are crucial. They provide for digital intelligence gathering techniques such as the analysis of bulk communications data and the use of data mining of bulk personal databases. Provided all the right safeguards are in place, these sorts of measures seem to the British parliament to be justified by the level of terrorist threats and serious criminality that we face.

Now, the question must be: Shouldn't the German Bundestag relax some of the legal restrictions on the use of those techniques by their authorities while ensuring that corresponding additional strict safeguards are in place?

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Bulk interception of data is crucial because it helps generate a picture of the totality of those involved in violent extremism and the connections between those inside the country and those outside it. It's not in any way guaranteeing that attacks will be stopped, and radicalized individuals can still decide off their own bat to conduct attacks. But the fact that over the past three years authorities are said to have stopped 12 attacks against the U.K. shows that Britain's methods provide the best chance of detecting those who are planning to commit violent acts.

A previous German surveillance law, passed in October, stops short of the kind of bulk collection provisions covered in the British legislation. There are cultural and historic sensitivities in Germany about surveillance that must be respected. But the best way to address objections is to point to the additional safeguards in the British legislation.

Firstly: the transparency. The digital techniques, including hacking and use of data mining, are admitted to by the security services, which they weren't before. They are now regulated by law and overseen by a judicial commission, supported by specialist inspectors.

Secondly, in the case of powers such as bulk access to data, the warrants have to be signed not just by the Secretary of State but also approved after judicial review by a very senior judge.

The U.K.'s Appeal Court will, however, have to consider the implications of a recent judgment reached by the European Court of Justice after examining an earlier piece of U.K. legislation—European law does not allow retention of communications data that is "general and indiscriminate." It is not at all clear how far, if at all, the work of the intelligence agencies concerned with matters of national security are bound by this judgment since national security is expressly excluded from the Treaty of European Union and thus the jurisdiction of the Court.

Reforming Germany's security legislation is not just about the German agencies being able to do more themselves. It's about making Germany an even more effective partner in the western counter-terrorist effort. Current German law can hamper cooperation between Germany and countries with advanced digital intelligence capabilities like the United States and the United Kingdom; German agencies should not have to hesitate about whether lawfully they could engage in joint operations or receive information from these partners.

We need across Europe, and in partnership with our allies such as the United States, to have a common approach to both accessing and analysing intelligence for public safety and security, and to agree on the kind of safeguards that we would expect to see in our mature democracies. Following reforms in the U.S., France and now the U.K., you can see the direction in which countries should now go: recognizing that we must equip ourselves with the means to minimize the risk to the public by trying to gather information on those who mean us real harm. I hope Germany will follow suit.

David Omand is a visiting professor at King's College London and a former senior civil servant and director of GCHQ, Britain's signals intelligence agency.