The almost blanket global spying by the US National Security Agency (NSA) on friend and foe alike, from ordinary citizens to diplomats and politicians, has morphed into much more than just a security issue. It has become a serious threat to the planned transatlantic free trade zone and some commentators are starting to talk of a looming “Transatlantic Ice Age”.
While Washington is doing its utmost to play down the fallout from the leaks of NSA activities by erstwhile employee, Edward Snowden, the incident also illustrates to what extent governments across the world have failed to put legal frameworks and structures in place to manage some of the more sinister capacities of present-day communications technologies.
Throughout the unfolding drama, as Snowden released top-secret documents, American officials, including president Barack Obama, have attempted to highlight and focus attention on the security advantages of NSA’s eavesdropping on the world. Instances were quoted where information gathered indeed foiled planned terrorist attacks in Europe and the United Kingdom.
The latest trove of revelations has however now taken the issue well beyond the realms of security considerations. The embassies in the US of countries ranging from India, Japan, Mexico, South Korea, and Turkey to the member states of the European Union, as well as the United Nations in New York have been targeted by NSA's Prism programme, which sweeps up metadata en masse, capturing and storing it.
One of the leaked documents reveals a list of 38 embassies and missions, describing them as 'targets' and details an extraordinary range of spying methods used against each target, from bugs implanted in electronic communications gear to taps into cables and to the collection of transmissions with specialised antennae.
In Germany the scandal is becoming a hot political issue. Germany is one of the main European targets of American snooping, because the country is only 11 weeks away from an election. In an opinion piece Der Spiegel wrote, “The German government has failed to protect the public from the NSA's surveillance programme and should be held accountable. On both a national and an EU level, there needs to be an independent investigation into the scandal.”
And across Europe doubt is developing on how negotiations about the Transatlantic Trade and Investment Partnership (TTIP), scheduled for this week, can continue in good faith under prevailing circumstances.
Among others, Luxembourg’s foreign minister, Jean Asselborn said "the Americans justify everything with combating terrorism”. Describing the latest allegations as disgusting he added that "the EU and its diplomats are not terrorists".
Martin Schulz, the president of the European parliament, likened the NSA to the Soviet-era KGB and indirectly suggested a delay in the TTIP talks.
The EU’s Justice Commissioner, Viviane Reding, said, "We cannot negotiate over a big transatlantic market if there is the slightest doubt that our partners are carrying out spying activities on the offices of our negotiators. The American authorities should eliminate any such doubt swiftly."
In the meantime the reaction of American spokesmen and women has been off-handed. John Kerry, the US secretary of state, in a low-key response said the NSA activities were not unusual. "Every country in the world that is engaged in international affairs of national security undertakes lots of activities to protect its national security and all kinds of information contributes to that. All I know is that is not unusual for lots of nations."
That however, is unlikely to be the end of the story. The Americans have probably transgressed existing laws in most of the countries of their European allies.
The office of Germany’s federal prosecutor has confirmed that it has opened inquiries into the NSA debacle, with a view to establishing whether German laws have been breached.
"The prosecutor's office is carefully assessing the media reports with reference to its legal mandate," a spokeswoman said. It would examine the available information to establish whether the NSA's interception of telephone and internet communication was violating German laws.
Der Spiegel reported that the spokeswoman also said that "criminal complaints" relating to the scandal appear "likely". One criminal complaint has already been filed in Germany. A provision was used at the local public prosecutor's office in the city of Giessen to lodge a criminal complaint against an unknown perpetrator over the spying.
The developing saga also illustrates to what extent governments and international institutions like the United nations have failed to put mechanisms in place to deal with the integration, and capacities, of modern communication technologies, which in the first place made the “mega gathering” of data possible. There is an old political mantra that holds that if something (potentially bad) can happen, it will happen; don’t try to ban it, rather try to manage it.
Against this background governments on both sides of the Atlantic, and across the world would do well to heed the call by Frank-Walter Steinmeier, the Social Democrats leader in the German parliament. In the wake of the debacle he called for a durable agreement between the Germans, the Americans and the British, clarifying what was needed on security grounds and what damaged civil liberties.