Transparency lacking

Peter Schaar has been Germany's top data watchdog since November 2003, following an election in the German parliament, the Bundestag. But his agency is formally a part of Germany's interior ministry, which means it's officially a part of the government. That leaves Schaar and his staff in a constant conflict between Germany's legislative and executive branches.

And since he took office ten years ago, Schaar has been faced with three different governing coalitions: between Social Democrats (SPD) and Greens, then a 'grand coalition' with the CDU/CSU and SPD, and the current government of CDU/CSU and Free Democrats.

Schaar hasn't had an easy time with any of the coalitions, but that is also true the other way around. One reason is that data protectors are currently more in demand but also more challenged than ever with the global fight against terrorism. The struggle to find the right balance between keeping citizens safe while guaranteeing their individual rights has had a tremendous impact on Schaar's work.

He says himself that he would have gladly done without some of the lessons he has had to learn. First up on the list is the reaction by Chancellor Angela Merkel and her government to the news that Internet users in Germany are being spied upon by US and British intelligence services.

Government refuses access to secret files

Since whistleblower Edward Snowden revealed the methods of the US intelligence gathering service, NSA, Schaar says he has felt let down by the German government. He says he cannot assess the role played by the German intelligence services in the scandal because the German interior ministry says it is not his jurisdiction.

Schaar has officially filed a complaint in writing and he reinforced his criticism of the German government at an international conference in Berlin, where data commissioners from all around the world gathered. Schaar sternly warned that a lack of transparency in public authorities' activities could lead to a loss of trust in democracy itself.

Schaar's portfolio was expanded in 2006 to include the field of freedom of information. That puts him in charge of defending the right of all citizens who want to access files stored by public authorities in Germany. In Germany, citizens have a legal right to access such files with the exception of secret intelligence files.

But now, due to the NSA scandal, Schaar has redoubled his insistence that citizens' rights be observed and respected. It is important, Schaar said, that people receive better information about secret activities, "and not just by whistleblowers."

Words of encouragement from the president

German president, Joachim Gauck, also attended the international conference in Berlin. In his short welcoming speech, the he said that freedom of information and transparency were "intrinsically tied" to democracy and to a community "which does not serve its own interests but those of its citizens."

Germany's head of state lived under the East German communist dictatorship until the fall of the Berlin Wall in 1989. As a result, the president has a very personal interest in defending citizens' rights. After German reunification in 1990, he became director of the Federal Commission for Stasi Documents, which administered the files and papers left behind by the East German secret police. The agency became known as the ‘Gauck Commission'. Gauck pushed through his demand to open the files, despite hefty opposition from West German politicians.

While activities by intelligence services in dictatorships and in democracies cannot be compared, Commissioner Schaar refers to Gauck's experience when demanding better control mechanisms. In an interview with Deutsche Welle, Schaar stressed that the public had to have much better access to information.

He argues that intelligence services these days are in a position to extensively monitor and register communications, and that "the core issue is that the majority of those who become a target are innocent people." Schaar wants the law on freedom of information to be extended to include the intelliegence services, which are currently exempt from the obligation to provide information.

Businesses stress 'non-public' principle

Toby Mendel, from Canada's International Center for Human Rights and Democratic Development, agrees that it's a worrying trend. He says the right to information was increasingly being put at risk because it's not a universal human right. At the conference in Berlin, Mendel criticized that often, information was denied on the grounds that the content was classified.

Private businesses traditionally regard too much transparency as harmful to their business operations, fearing competitive disadvantages and industrial espionage. Stephan Wernicke from the Association of German Chambers of Industry and Commerce (DIHK) underscored that the entire private sector was based on the ‘non-public' principle. At the same time, however, companies already have to make a big share of their data public, he said. "That's definitely true for tax law," but also for environmental and health law. Wernicke believes that the law already provides for transparency, and that "that's perfectly alright."

The questionable role of Google and others

Germany's top data protection admonisher, at any rate, wants things to change with regard to private businesses, too. It's another field where he calls for more transparency – especially when it comes to international companies "which can avoid national law".

That's a reference to the questionable role several Internet and telecommunications groups, such as Google and Vodafone, have played in the NSA scandal.

They are accused of having given the intelligence services in their countries free access to their clients' data. And they have clients all over the world – including Germany.