In Flagrante Delicto: The BND and the NSA

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Courtesy: Kevin Lamarque

By Ann-Marie de Veer
Saturday 15 March 2014

On 7 July 2013, just one month after the Guardian first disclosed the NSA's PRISM operation to the world, der Spiegel (dS) printed an allegation by the whistleblower Edward Snowden that the German foreign intelligence service, the Bundesnachrichtendienst (BND), knew all along about the activities of the NSA in Germany. In an interview with dS, posted the same day, Snowden said, the NSA are in bed together with the Germans.

The silence from the BND and the German government, the Bundestag (BT), was deafening.

Three weeks later on the 29 July 2013, in a change of strategy designed to take the initiative after yet another post by dS on 22 July 2013, the head of the BT's Chancellery, Ronald Pofalla, spent almost three hours discussing the issue: first to answer questions in front of the German Parliamentary Control Panel and then the media.

Der Spiegel followed this up with a report giving details of the Boundless Informant and the XKeyscore programmes reported earlier by the Guardian and, published some new material of their own:

Courtesy: Edward Snowden via der Spiegel

Published here for the first time, this Boundless Informant display shows monitoring possibilities in Germany for the period between Dec. 10, 2012 and Jan. 8, 2013. Blue signifies "Digital Network Intelligence," or DNI, data that comes from the Internet, as well as from "private digital networks." Green signifies "Dialed Number Recognition," or DNR, the capacity to track certain phone numbers. When a tracked phone number receives a hit, the communication is recorded.

Most Volume: The codes US-987LA and US-987LB signify so-called "Sigint Activity Designators," or SIGADs for short -- they are codes for data collection points or data collection programs. Within the parts of the Snowden archives that SPIEGEL has been able to view, there is no clear classification for these two codes, but there is an interesting detail that calls for further inquiry. According to the Snowden documents, the NSA also contracts out SIGADs for the technical surveillance activities of so-called "third parties." The 987 series, for instance, should be included in the category of "third party SIGADs." The NSA usually designates countries as third parties, as well. Germany belongs to this category, but also neighbours such as France, Austria, Denmark, Belgium and Poland. To find out where the metadata out of Germany that the NSA claims to have access to is originating, one essential question has to be answered: Who or what is behind the codes US-987LA and US-987LB?

XKeyscore: From the more than 500 million data connections to which the NSA has access every month, around 182 million of them are collected with the spying tool XKeyscore. A week ago, SPIEGEL reported on the wide-reaching surveillance capabilities NSA analysts have through the system, based on a classified NSA presentation. The program also enables a "full take" of all unfiltered data over a period of several days -- meaning, not just metadata but also the content of online communications. The gathering of hundreds of millions of Germany-related data connections does not mean that all of the data will be analysed and evaluated by means of XKeyscore. According to the NSA, this happens on a case-by-case basis.

Lopers: As explained in NSA documents, Lopers is a system that allows the agency to spy on telecommunications. It is purely software-based and applicable to traditional telephone networks ("Public Switched Telephone Network").

Juggernaut: This system picks up signals from mobile networks, including vocal telephone communication, fax, data and text messages.

In order to put the figures for Germany in context, information for Spain and Italy during the same time period has been included: Courtesy: Edward Snowden via der Spiegel

The Netherlands and France were also included as a basis for comparison: Courtesy: Edward Snowden via der Spiegel

Proof beyond doubt that the BND, in concert with the NSA, were collecting-it-all.

Der Spiegel continued their report by stating that the Federal Office for the Protection of the Constitution had failed to respond to their questions but its President, Maaßen, admitted to the Bild am Sonntag that the BND did use the XKeyscore programme, albeit only for test purposes. Der Spiegel probed the issue further, quoting Schindler and Pofalla:

"The transfer of millions of pieces of data a month from Germany to the NSA through the BND does not take place," Schindler said.
But that wasn't what SPIEGEL had reported. It was reported that the German agencies use a highly effective NSA surveillance software, and that this was not disclosed to the lawmakers on the Parliamentary Control Panel, even though the committee had already met four times since the surveillance scandal broke.
Pofalla resorted to a similar trick in another case. SPIEGEL had written that the BND had advocated a looser interpretation of Germany's strict data privacy laws, as stated in the NSA documents ("to relax interpretation of the privacy laws"). After appearing before the panel on Thursday, Pofalla declared that the "unbelievable accusations" that had been leveled against the German intelligence agencies had now been clearly refuted. "The German intelligence services operate in accordance with law and order," he said. But SPIEGEL hadn't even claimed that BND President Schindler was violating current law.
In the hearing before the control panel, the BND chief also confirmed that, from the standpoint of his agency, data privacy laws should be interpreted more loosely, and that this was also what he had said in the United States. But, he denied, in the form of an "official statement," wanting to soften German data privacy laws across the board.
On Thursday, Pofalla's line of defence was clear, namely that the German intelligence services are blameless, at least legally. "Data privacy laws are adhered to 100 percent of the time," he said.

If Schindler and Pofalla thought they had silenced the media, they were wrong. On 12 August 2013, dS posted a report focusing on how Germany was both an ally and a target followed by another on how a no-spy agreement between Germany and the US had not come to pass.

And there, curiously, save for an occasional mention in the media about first: a lack of progress in formulating a no-spy agreement, and then; the unlikely emergence of such a pact, the matter would have been laid to rest.

That is until the German Bundestag Documentation and Information System quietly posted both the questions (BT-Drs 17/9305 - (Kleine Anfrage) - 5 April 2012) and answers (BT-Drs 17/9640 (Antwort) - 15 April 2012) about the XKeyscore and Boundless Informant programmes used by the BND after Pofalla had left office on 17 December 2013. The final smoking gun was a covering letter written by Pofalla about the Kleine Anfrage and sent to the President of the German Bundestag, Norbert Lammert dated 11 May 2012.

Schindler, Pofalla and the Bundestag were fully aware of what was going on all the time.

The visionary lies to himself, the liar only to others.
Friedrich Nietzsche