Tapping Merkel’s Cell Phone: What Next?
Author: Luka Budinčević Supervisor: dr. Stephanie J. Simon Second reader: dr. Marieke de Goede June 2014, Amsterdam „Master thesis Political Science“: European Union in a Global Order
Content
Introduction……….2
Rational choice theory………5
Methodology……….11
The tapping………...13
What next?...23
The UN resolution……….23
„No-spying Agreement“ in the context of „Five Eyes“ membership………...25
German counterespionage………28
Launching the investigation………..30
Asylum for Snowden?...32
Conclusion………....37
Introduction
On Wednesday the 23rd of October 2013 one of the news which made an impact on the world of politics in general and security studies in particular, is the revelation of the German newspaper Der Spiegel (Appelbaum et al. 2013) of a possible phone tapping of German Chancellor Angela Merkel by the US’ National Security Agency (NSA). On the same day, Merkel called the US President Barack Obama demanding an explanation for this allegation. The following day, „She said: ‘Since we are talking about the NSA, I have also told the American President: „There is no way of spying amongst friends“. She added: „This I told him in June, when he was in Berlin and also yesterday on the telephone. And I did so because of the citizens of Germany. It is not so much about me, but about all citizens. We need trust amongst allies and partners.’ “ (Euronews 24 October 2013a). As the revelation started to unfold during the second day, the scandal received more and more attention: first, the German security services confirmed that the allegations of tapping were plausible, and then Der Spiegel published an article in which it explained how the eavesdropping was carried out. That the situation was serious proves the fact that the German minister of foreign affairs at the time, Guido Westerwelle, summoned the US ambassador, John B. Emerson, to discuss the issue – a rather unusual and drastic decision. The words of Germany’s defense minister at the time, Thomas de Maizière, that, following the allegations, Washington and Berlin (but the whole Europe as well) could not go back to the usual business (The Guardian 24 October 2013) only added a higher note to the seriousness of the issue.
On the other side of the Atlantic Ocean, US President stated in the telephone conversation with the Chancellor that he had no idea about the issue and that if he had known, he would have stopped it. To mitigate the potential harm, White House Press Secretary, Jay Carney, stated the following: „I can tell you that today President Obama and Chancellor Merkel spoke by telephone regarding the allegations that you mentioned, that the US National Security Agency intercepted the communications of the German Chancellor and I can tell you that the President assured the Chancellor that the United States is not monitoring and will not
monitor the communications of the Chancellor“ (emphasis added). Then he starts to deflect by
adding that „The United States greatly values our close cooperation with Germany on a broad range of shared security challenges. As the President has said, the US is reviewing the way we gather intelligence to ensure that we properly balance the security concerns of our citizens and allies with the privacy concerns that all people share. Both leaders agree to intensify further cooperation between our intelligence services with the goal of protecting the security of both
countries and of our partners, as well as protecting the privacy of our citizens“ (WakeUp! 2013). To the question whether this „not monitoring“ leaves the door open to the possibility that NSA, as part of the broader sweep, picked up some of her communications, Carney again replied by: „All I can tell you is what the President told the Chancellor: the United States is not monitoring and will not monitor the communications of the Chancellor. You know, as we have said in the past, you know, we gather foreign intelligence just like agencies… similar agencies of other countries, but we are working to, as the President has said, to review the way that we gather intelligence to insure that we properly balance both security concerns of our citizens and allies with the privacy concerns that everyone shares“ (ibid.). Looking at the denial of the Spokesman, the words that are missing are „had not“ or „did not“. Answering the question of Al Jazeera if this was something that happened in the past, the official line was repeated and supplemented with: „[…] Beyond that, I’m not in a position to comment publicly on every specific alleged intelligence activity“ (Al Jazeera 24 October 2013). Even with no evidence confirming that the allegation was true, one could intuitively conclude only by relying on this statement that there indeed was a case of phone tapping.
This, of course, led to an outrage from Germany to both sides. One the one hand, and perhaps more logically, German authorities criticized the US for the eavesdropping, since „there is no spying among friends“ (Euronews 24 October 2013a). In the same speech made by Angela Merkel quoted above, she explicitly states that her primary concerns are not her privacy rights, but the privacy rights of all Germans – perhaps she said so in fear of being criticized of criticizing the US’ NSA activities only after she personally was affected. And this is exactly what happened, or in the words of Anke Domscheit-Berg of the German Pirate party: „In the past few months, Chancellor Merkel did very little to make the US government answer all those questions that should have had highest political priority. Now she gets a taste of what it feels like when foreign secret services spy on all your communication. We have stopped trusting empty promises and so should Angela Merkel. It is time to get all dirty secrets on the table“ (Oltermann 2013). Not only that, but the statement of Merkel’s chief of staff at the time, Ronald Pofalla, before the new revelations that the NSA scandal was over now, led to an even greater condemnation. Indeed, one might add the old saying „Fool me once – shame on you; fool me twice – shame on me.“
Although decreasing in extent over time, the case has had an impact on relations between Germany and the US. Already, at the EU summit that took place on 24th and 25th October in Brussels, the protection of privacy rights was, by no means coincidentally, the main topic. The word was, as Merkel said herself to Obama during the conversation, that if
the indications are authenticated, this would mean a serious breach of trust. A number of articles had for the next couple of days a similar headline. (Al Jazeera America 2013; Los
Angeles Times 2013; The Christian Science Monitor 2013; The Verge 2013;). Since it was
proven that spying indeed did take place, the trust was undoubtedly breached: however, the cooperation between the two sides has not ceased to exist, proving the willingness of both sides to continue with the alliance. Merkel and French President, François Hollande nevertheless called on President Obama to initiate a „no-spying“ agreement with them (Euronews October 25 2013). Unfortunately for the US, the scandal happened just before it was supposed to make agreements with the EU on free trade. The tapping of Merkel’s mobile phone is only a part of a much larger case of massive surveillance activities by the NSA revealed by its former contractor, or the “whistleblower”, Edward Snowden, and as such it is for social science a very relevant topic, not least because the “Snowden affair” is still ongoing.
On Monday of the same week of the revelation, Hollande also called Obama for an explanation of the allegation that the NSA tapped some 70 million phone calls and text messages of millions of French citizens (Christafis, Jones 2013) which was followed up by the same news, this time regarding French diplomats in Washington and at the UN, published the next day. Similar cases to the German one could be seen in Brazil, where the President of the state, Dilma Rousseff, was allegedly spied on, which had for a consequence her cancellation of the trip to Washington out of protest, but also in Mexico, where the „victim“ was its leader, Peña Nieto. As a matter of fact, the NSA spied on 122 world leaders all in all (Deutsche Welle 29 March 2014). However, the reason why Merkel’s case got most of the attention is because the trust was breached between as close allies as Germans and Americans (de Maizière calls the Americans Germany’s „best friends“) (Euronews 24 October 2013b). The sequence of the cases before this one only added to its magnitude. This is where the strength of the thesis lies – in other words, one may use this model to asses other similar developments, most notably the one between France and the US concerning the same issue. Therefore, it is exactly this case that claims to be examined among others which is precisely what this thesis attempts to accomplish.
Bearing in mind all of what has been mentioned above, the question which I will here try to give an answer to is: Which were the logics that guided Germany on the one side and the US on the other to make the decisions they did relative to the revelation of tapping Angela Merkel’s cell phone? These decisions include the UN resolution against spying on electronic communication, a „No-spying Agreement“ in the context of Germany’s membership in „Five
Eyes“, as well as counterespionage measures and an investigation of spying activities of the US conducted on German soil, both being initiated by Germany. A possible decision of granting Edward Snowden asylum in Germany will also be included. This piece is divided in four sections: in the first one, I analyze rational choice theory (RCT), since one could expect all of the actors involved to act rationally by trying to „have it their way“ – judging by the past, the Americans obtaining as much information as possible and Germans and generally the EU trying to put and end to it – on the one hand, but at the same time also by preserving the alliance with their partner on the other because otherwise would be unbeneficial to them (as George W. Bush once said: „You’re either with us or you’re with the enemy“). The second section deals with methodology where I explain how I will operationalise the data that I gathered. Regarding the empirical analysis, I will first focus on Der Spiegel article (but also other ones, as well as some blogs) which explains how the tapping was carried out, proving that there indeed was a case of eavesdropping, thus also a breach of trust; then, I will look at the more recent developments connected with the scandal through the lens of RCT (where I will pay special attention to the developments concerned with the „no-spy“ agreement), which is core to this thesis. In the final, forth section, I will summarize my findings and try to draw some conclusions from the research.
Rational choice theory
There are, of course, a number of theories that could be used in order to give an answer to the research question mentioned above. Some of them would give an answer to a similar but not the same one – for example, by perceiving states as main actors, realists could give an explanation to the question of how the relations developed after the revelation (after all, realism and idealism were the first among many theories concerned with international relations). However, since the main focus of this thesis is not on relations between the actors, but on actors themselves and on their logics for the decisions that they made after the revelation of tapping of Angela Merkel’s cell phone, rational choice theory (RCT) (also known as public choice theory, rational actor model, positive political science or the economic approach to politics), conceiving action as fundamentally rational in the sense of wanting more rather than less of a good1, seem to go hand in hand with the main research question.
1
John Scott defines rational action as „a conscious social actor engaging in deliberate calculative strategies“ (Scott 2000: 3), whereas, referring to rationality, Debu Gandhi notes the following: „Rationality is understood
Before analyzing what RCT does, it is perhaps better to first emphasize what it does
not do and why not. One of the main critiques of RCT is the lack of realism in its assumption
that we calculate the expected consequences of our options and choose the best of them. It therefore seems that rational choice theorists tend to forget that individuals often act irrationally as well. The problem with this critique is, according to Hechter and Kanazawa, that „Genuine rational choice theories […] are concerned exclusively with social rather than individual outcomes“ (Hechter/Kanazawa 1997: 192). Emphasizing that most sociological rational choice theories assume that actors act rationally in a broad sense, Hedström and Stern explain that their adherents „[…] are macro-orientated but they are methodological individualists […], that is, they seek to explain macro outcomes and correlations […] in terms of the intended and unintended outcomes of individuals’ actions“ (Hedström/Stern p. 9).
Based on privately held values or preferences, a RCT aggregates individual choices, according to Kenneth A. Shepsle (1989). From this point of view, it becomes clear that rational choice theorists believe that „There is no such thing as society“, involving in this way the so-called „undersocialized conceptions of human action“. Using the term „methodological individualism“, Scott explains that complex social phenomena can be explained, according to this theory, in terms of the elementary individual action of which they are composed. He goes on by saying that „Rational choice theorists have incorporated collective action into their theories by requiring that the actions of groups and organizations be reducible to statements about the actions of individuals“ (Scott 2000: 7). Contrary to others, however, Satz and Ferejohn (1994) criticize the view that, without also being a methodological individualist, one can not be a rational choice theorist. They believe that the received view of RCT as individualistic (and psychological) is wrong about its nature.
Going into more details about how RCT works it is necessary to go back to its roots. RCT was first used as a model in economics in the 1960s and 1970s with great success. Realizing that, some political scientists thought that by applying the methods of economics to their own field they would achieve similar success. Therefore they attempted, according to Chalmers Johnson (1997), to apply the neo-classical model of a market to politics and instead of production, distribution and consumption of goods and services used in economic theories, they used resources such as approval, information, prestige and time to understand interactions by the same general principles. While „[…] the starting axiom of rational choice not in terms of “rational goals,” but only in terms of rational means [understood as action] to achieve goals, i.e. efficient means, “maximizing output for a given input, or minimizing input for a given output,” (Downs 1957, 5)“ (Gandhi 2005: 81). Finally, a minimal definition of rationality is the so-called „transitivity of preference“, which basically means that a rational individual who prefers A to B and B to C must also prefer A to C.
theory is that self-interest is the cornerstone of political behavior (Downs 1957, 22)“, the foundational assumption is thus the belief that homo economicus equals homo politicus (Gandhi 2005: 81), which perceive man as a maximizer of privately held values and a purposive, proactive agent. Besides that, the idea was also that all action is fundamentally rational in character – hence, the name. Still, as McLean points out, „rational“ is neither implied by nor implies „selfish“. The theory has had a major impact on political science in the 1980s and 1990s, especially in the US.
The existence of any kinds of action other than purely rational is denied by this theory, distinguishing it in this way from other theories, according to Scott. He continues by saying that „All social action, it is argued, can be seen as rationally motivated, as instrumental action, however much it may appear to be irrational or non-rational“ (Scott 2000: 2). A possible reason why one actor may perceive the other one as acting irrationally is because they have different norms (and rational choice theorists believe that norms are merely arbitrary preferences) – however, both of them will act rationally in relation to their own ones, whatever they may be. Yet, it is exactly the notion of norms that poses difficulties for RCT because they are not purely rational. This is not the only thing that they do not have in common with RCT: they are not orientated towards outcome but are internalized, and rather than through rewards and punishment (see below), they operate through guilt and shame. Indeed, when it comes to the explanation of (the origins of) norms, RCT is powerless, according to Scott. That is why he concludes that the two are complementary processes in the formation of social action.
Finding out that RCT was first employed in the world of economics, it is no wonder that it retained calculation as its main strategy even in political science. The things that are calculated are the most probable costs and benefits of any action before deciding what to actually do. Shepsle notes that „Agent behavior takes the form of choices based on either intelligence calculation or internalized rules that reflect optimal adaptation to experience“ (Shepsle 1989: 134). Individuals, seen as conscious decision makers, must, according to RCT, anticipate the outcomes of alternative courses of action and calculate to see which one will be best for them. However, some, like Herbert Simon, do not perceive humans as „omniscient calculating machines“, and argue that people often „satisfice“ since the computational and information gathering costs of maximizing are too high. An important feature of RCT is preferences. In RCT, preferences are expressed by wants or goals that motivate individuals, according to Scott. Yet, besides preferences (and values), there are also institutional constraints under which the actors make their decisions. „They [individuals] act within
specific, given constraints and on the basis of the information that they have about the conditions under which they are acting“ (Scott 2000: 3). One can imagine this relationship between preferences and constraints in purely technical terms of the relationship of a means to an end. A received view is that, given her preferences and beliefs, a rational action or choice is one in which an agent takes the best available action. This view is too formal as it perceives rationality only in the relations among preferences. Satz and Ferejohn explain that one ought to focus on the rationality of preferences alone as well.
In his work called „Rational Choice and Politics“, Iain McLean argues that when actors interact probabilistically but non-rationally, appropriate methods are derived from physics, but when they act rationally, they are derived from game theory and economics2. Most of his work focuses on the latter. Referring to the work of Cournot and Richardson, he says that they „assumed that humans are capable of reacting to one another’s behavior but not of reasoning about it“. Indeed, although there is no proof that humans act rationally, we need to believe that they do if we want to predict and analyze their behavior (which is, in turn, motivated by values). He continues: „As soon as we postulate humans capable reasoning […] we move from the realm of physics to that of game theory“ (McLean 1991: 498). Gandhi notes that „[…] in the world of state-state IR […] game theory with rational choice assumptions is indeed very useful, and contains many useful insights about how regimes are likely to act in order to maintain their hold on power“ (Gandhi 2005: 88).
In „The Theory of Games and Economic Behaviour“, John von Neumann, the inventor of the theory of games, and Oskar Morgenstern primarily focus on the so-called „zero-sum“ (or „contrast-sum“) games. If there is a case in which the aggregate payoff is the same for all outcomes, the word is about a zero-sum game, according to McLean. Any other one is a „non-zero-sum“ (also called „variable-sum“) game. As most of games are in the ordinary sense zero-sum, the total number of available points for winning is the same – it is only that this number is differently distributed. This makes McLean conclude that, from this point of view, „[…] there is no scope for long-run cooperation between the players. They may make short-term alliances, but these are bound to collapse in the end-game“ (ibid.) However, as Gandhi points out, contemporary rational choice theorists claim that their theories do not necessarily predict zero-sum turnout.
2
Scott seems to agree with the view by saying that „The fact that people act rationally has, of course, been recognized by many sociologists, but they have seen rational actions alongside other forms of action, seeing human action as involving both rational and non-rational elements. Such views of action recognize traditional or habitual action, emotional or affectual action, and various forms of value-oriented action alongside the purely rational types of action“ (Scott 2000: 1).
John Scott pays much attention in his work to the „social exchange“, a concept which is important for the case presented in this thesis. In a case of social interaction, individuals are, logically, involved in mutual reinforcement. This is so because behavior of each of them either rewards or punishes the other. Through this exchange of punishing and rewarding behaviors, their joint behavior develops. Bearing this in mind, rational choice theorists see, following the economic model, social interaction as a process of social exchange. They even termed rewards and punishments as rewards and costs to emphasize the similarities with economics even more. Of course, the pursuit of a profitable balance between the two motivates the action (since different actions vary in their rewards as well as in their costs). One, however, may not forget that the promise of a reward or the threat of punishment can have the same motivation for people just as much as reward and punishment itself. The strength of reinforcement is determined by its value and its quantity. Concerning reward Scott points out that some perceive the value of it as the utility that it has for an individual. He continues: „While this subjective utility can vary greatly from one person to another, it is possible to construct preference curves that measure the relative utility of one object against another and, therefore, the likelihood that people will try to obtain them“ (Scott 2000: 5) (original emphasis).
The formula of the profit that somebody gains in interaction is rather simple3 in RCT: profit = rewards received – costs incurred. Bearing in mind what was previously mentioned about what motivates the action of an actor (the pursuit of a profitable balance between rewards and costs) one can logically conclude that unless each participant finds an interaction profitable, it will not continue. This statement plays a very important role for the relation between Germany on the one hand and the US on the other. If an actor believes that the costs of an interaction are greater than rewards, he/she experiences a loss, creating in this way an incentive for the actor to withdraw. The ones who perceive an interaction as unprofitable and withdraw from it will most probably look for alternative interactions where their chances of earning a profit are better. Therefore, a balance of mutual profitability is necessary for a sustained social relationship. What is also of a great importance for the cooperation between Germany and the US is the idea that, since the resources that actors bring to their social relation are almost never equal, exchange relations are also power relations. Concerning this, Scott concludes that the outcome of any particular exchange will be determined by the
3 Yet, it is exactly the same simplicity of RCT that has been the main point of many of its critics, like Johnson
(1997) and Gandhi (2005). Shepsle (1989) thinks on the other hand that oversimplification is inevitable anywhere, and so in RCT as well.
relative power that the participants have. The level of dependence of a participant on the exchange relationship determines his/her bargaining power, and this dependence is, in turn, determined by the extent to which there are alternatives available to the participants. Thus, if an actor has no alternatives to achieve a goal but to engage in one specific social relationship he/she is very dependent on this relationship and thus has smaller power in comparison to other participants. Conversely, a variety of options means less dependence on a relationship, which in turn means greater power.
There are a couple of further points which are important when discussing RCT. Satz and Ferejohn write that the explanatory power of RCT matches the extent to which actor’s choice is limited. The more his/her action is constrained, the greater the explanatory power of RCT. They argue that „All of the cases in which rational-choice theory is a strong predictive theory are ones in which the theory is relying on interests that are determined by features of the agent’s environment [that is, where agent’s action is limited]“ (Satz/Ferejohn 1994: 81). On the other hand, Chalmers Johnson sees RCT as best (and perhaps only) applicable to the study of politics in the US, since it was developed there. As he says paraphrasing Bates „[…] rational choice theory is inseparable from the overgeneralization of American political culture“ (Johnson 1997: 172). Relating to that, McLean’s thinks that rational choice theorists might be more influential if they would not be so ambitious in trying to apply RCT to every single social phenomenon. Gandhi agrees that universalist political science theories are flawed (because the relative importance of communicative versus strategic forms of action coordination varies historically and geographically – thus, the different norms discussed above). However, he believes that it is possible to intelligibly pursue predictive, albeit speculative possibilities.
Having made clear some general properties of rational choice theory, it would be interesting to see what rational choice theory would say regarding the case of tapping Angela Merkel’s cell phone and the events that took place afterwards. In this sense, it is first and foremost important for the purpose of this thesis to recognize that all the actions of all actors concerned with the case are fundamentally rational in character, as irrational as they may seem, if we want to analyze their behavior. That is why many theorists perceive actors as if they are acting rationally. Regarding norms, judging by Gandhi’s argument in the previous paragraph and taking into account the view of rational choice theorists that they are merely arbitrary preferences one can conclude that Americans and Germans have different norms in accordance to which they act. This would also mean that they have different preferences which can have for a consequence a disagreement, as we have seen. However, they all will try
to accomplish their preference as much as their capabilities allow them. Concerning the game theory, it turns out so far that zero-sum game is not the one in question here, since Germany is still cooperating with the US, regardless of the scandal, meaning that all of them greatly value the cooperation. But RCT does not predict zero turnout necessarily, which is a rather „lame and unsure“ defense in Gandhi’s view.
Because of the interaction in which they are involved, the US and Germany will reward and punish each other just as any other actors in a relationship do – since it stands contrary to the German interests, tapping Merkel’s cell phone definitely represent a „punishment“, although it is not the only one from the US, but this event also initiated the EU to „punish“ the US. Yet, taking the above mentioned formula of the profit into account, one can conclude that all actors find the interaction so far profitable which is why it still exists. It is true as we shall see that some costs did incur, but the rewards of retaining cooperation must be greater as it is still going on. These punishments, as well as intended rewards which were also observable, represent a struggle for the two sides to have it „their way“ in the relationship. The punishments also stand for the relative power that they have. Assuming that the US is a more powerful actor than Germany (the US is regarded as the world’s greatest super-power after all), one could assume that it is this side which is having it more „their way“ than the other. Yet, it would be very unbeneficial for Germany not to stay in alliance with such a strong player on the world scene as the US. On the other side Germany as EU’s largest economy is not an insignificant actor. Thus, it would be also very unbeneficial for the US to cancel the cooperation with their ally. It is therefore, as mentioned in the introduction, the assumption that the actors involved will do everything they can to have it their way as long as it does not jeopardize the cooperation with their allies, which is of greatest interest to both of them. Only the events that occurred before and during the writing of the thesis will be included but, following Gandhi’s view about the capabilities of RCT, the assumption is that the same strategy will take place in the future. The following section deals with methodology used in thesis.
Methodology
Before engaging in empirical analysis it is necessary to explain the methodology of the thesis, or to put it simply, to give an answer to the question which data will be collected and how it will be analyzed.
For the purpose of this thesis the newspaper articles represent the key source of data in the case at hand (thus, the first sentence of the thesis). Also regarding the first sentence of the thesis, it is not coincidental that the German weekly newspaper Der Spiegel was mentioned. Der Spiegel is probably one of the most respected newspapers in the country, and besides that it was most definitely the first one to publish the story. Not only that, but it also provides information in much detail about how the tapping was carried out. Because of that, it is precisely this article which will be thoroughly examined. Blogs can sometimes also be a useful source of information, and here this happens to be the case. „Electrospaces“ can thus be used as a complementary to Der Spiegel. However, Der Spiegel provides also some useful information about the event that took place after the revelation. Other well-known newspapers will also be included in the study, like „Deutsche Welle“ or „The Guardian“ as well as some less known ones. Besides all of that, news reported by Euronews will be examined as well. It has to be noted that there are not many academic articles dealing with the tapping of Merkel’s mobile phone (or with the events that happened afterwards). An exception represents Stefan Talmon’s „Tapping of German Chancellor’s Cell Phone and Public International Law“, which is also going to be included. This all would suggest that the methodology in question is a form of document analysis.
As previously shown RCT assumes that all actors have predefined interests. Just as any other state, Germany too has the intention to protect its citizens along with their privacy as a part of state’s sovereignty. Accordingly, it is relatively easy to picture German government as trying to disrupt all spying activities pointed against its citizens from all intruders, including in this way the US. This can be achieved by a variety of strategies, ranging from the ones using only soft power, to the ones where the intentions are explicitly shown to the others. A challenge posed in the thesis is to examine these interests of the actors on the basis of the documents used. As the main resource of information for the research at hand is newspaper articles, it is here where the main information to be studied is found. These interests are always manifested in some sort of action, varying from public announcements to concrete action. Therefore, this action in the context of protection of privacy rights of German citizens shows the intention of the German government. The action that the Germans take in order to protect their privacy rights corresponds to the decisions that they made previously, which in turn is based on the interests that they have relative to the protection of their privacy. As RCT suggests, this action has to be perceived as rational in character in order to enable its analysis. By doing so, placing the action of the actors in the context of the US-German
relations allows for better understanding of the interests of each of them relevant for the case at hand.
Concerning the actors at stake, in cases of Germany and the US it is their respective governments since they are the ones that made decisions relevant for the thesis. The logics that guided each actor to make the decisions that it did relative to the revelation of tapping Angela Merkel’s cell phone will be accessed through the act of punishment: if the actors which engaged in an interaction have different motivations, they will necessarily punish each other in order to achieve them (punishing is once again understood as a pursuit of a policy which contrasts the interests of the other actor). Likewise, their motivations are also revealed by the effort to avoid the punishment of another actor. It is therefore to assume that the punishers are pursuing their motivations by punishing, while the motivations of the punished are endangered by it. The efficiency of pursue of actors’ goals is determined by their relative power. If there is a case connected with the tapping of Merkel’s cell phone that clearly stands contrary to the interests of Germany, this will be concerned as the US exercising its power (that is, having it „its way“) within the cooperation with Germany. Conversely, if Germany is acting contrary to the interests of the US, this indicates Germany exercising its power in the same sense. Finally, it is also important to look for any signs of putting the cooperation between the actors to an end. So, for example, a „breach of trust“ signals that there is a problem in the relationship, but it does not foresee the end of it. It is clear that the cases where the actors exercise their power show their real intention. To round up, by analyzing the events in this way it should be possible to give an answer to the main research question and it will also show whether the theory holds out. What comes next is an explanation how tapping was carried out and what happened afterwards.
The tapping
As previously mentioned, the first one to reveal that Angela Merkel’s cell phone was being tapped by the US intelligence agencies was the German newspaper Der Spiegel. The article was first published on 23rd of October 2013 in German, but the one published on 27th of October in English reveals the details of eavesdropping, which is why the latter one will be used for the purposes of the thesis.
Already at the beginning of the article, it is noted that the American Embassy in Berlin have been used as a listening station, and that the revelation poses a serious threat to German-American relations. The embassy itself is located at Berlin’s Pariser Platz, which is a few
paces away from German government, the Reichstag, making it this way the perfect location for diplomats, but also spies. It was on 4th of July 2008 when the US moved into the embassy building and, ironically, Angela Merkel was there to welcome the diplomats. That the US diplomatic mission in Berlin has not merely been promoting good German-American relations, but also conducing spying activities was concluded by talks with intelligence officials, research by Der Spiegel reporters in Berlin and Washington and the evaluation of internal documents of the US’ NSA and other information which are mostly obtained from the archive of Edward Snowden. The special unit of the NSA and CIA can apparently monitor cell phone communications from the roof of the embassy in the quarter where the government is located. It is also pointed out in the article that there is evidence that the cell phone that the Chancellor uses the most was recently targeted by agents based at Pariser Platz in the German capital.
With this revelation of the NSA-Merkel spying scandal, the word about serious tensions between Berlin and Washington was spreading. Yet, there was not word about ending the relations between them. Not only that, the Chancellor herself said „Now trust has to be rebuilt.“ Because Merkel frequently uses her cell phone for conducting her duties as the Chancellor, the eavesdropping of it is probably the most sensitive subject for her. As same as de Maizière, Merkel has said that she has expected her phone to be monitored, however she was referring to Russia and China and not the US. The revelations had such an impact that even Merkel’s Christian Democratic Union, which had good relations with Washington, started openly questioning the trans-Atlantic free trade agreement. It was said at the Chancellery that certain conclusions will be drawn and talks over the agreement could be put on hold if the US government does not take greater pains to clarify the situation, according to Der Spiegel.
According to a „top secret“ classified document from 2010, a unit known as the „Special Collection Service “ (SCS) is, among other locations, operational in Berlin. It represents an elite corps run in concert by the CIA and NSA. The secret document further reveals that out of around 80 locations worldwide where its agents are active, 19 are in Europe (in cities such as Rome, Geneva, Paris, Prague, Madrid and others). An unusual fact is that in Germany, there are two bases maintained by SCS: one in Berlin, but also one in Frankfurt. Both German bases are staffed with active personnel and equipped at the highest level. The SCS teams mostly work undercover in shield areas of Consulate and the US Embassy. They are officially accredited as diplomats which is why they enjoy special privileges. They are able to listen and look unhindered because of the diplomatic protection and there is no way of
catching them. The authors of the article argue that it is in nearly every country illegal to wiretap from an embassy. It will be discussed later whether that is the case at hand. For now it is important to mention another secret document which evidences that this is precisely what the task of the SCS was. The authors do not specify the document, but they do point out that the SCS operates its own sophisticated listening devices which enable them to intercept practically every popular way of communication: wireless networks, cellular signals and satellite communication. As in Berlin, the equipment is usually installed on rooftops of the embassy buildings where it is covered from the sight.
It is further believed that SCS agents use all over the world the same technology, according to Der Spiegel staff. Since the disclosure of the equipment would be harmful for the relations between US and a foreign government, the SCS were very careful to hide it, especially the large antennas, one of which is known by the code name „Einstein“. SCS units can, according to the documents, also intercept millimeter-wave and microwave signals. There are also some programs which deal primarily with the search for potential access points and encrypted communications in foreign countries. One such is entitled „Birdwatcher“, and it is controlled from SCS headquarters in Maryland directly. The functioning of the SCS has changed since the Internet gained on the importance. According to an internal presentation reported in the article some 80 branches offer for web-based operations thousands of opportunities on the net. Besides being able to intercept satellite communication and cell phone calls, the organization can now also proceed against hackers or criminals.
A document that apparently comes from an NSA database in which the agency records its targets indicates that it indeed was the SCS that targeted the German Chancellor’s mobile phone. It is the same document which set the scandal in motion. Merkel’s cell phone number is included in the document. An inquiry to her team revealed, as noted above, that it is the number she uses the most to communicate with ministers, party members and confidants. She often opted for text message to do so. The number is a „Selector Value“ in the language of the NSA, which is where her actual mobile phone number is evident. The number points to the telephone company in question which is Vodafone. The next two relevant fields determine the format, which is „raw phone number“ and the „Subscriber“, which is „GE CHANCELLOR MERKEL“. The next field, „Ropi“, which stands for Responsible Office of Primary Interest, is where the NSA identifies who is interested in tapping Angela Merkel: the one in question is the department S2C32 (Electrospaces 2013). The first letter stands for „Signals Intelligence Directorate“, which is the NSA umbrella term for signal reconnaissance. The number 2 is the agency’s department for evaluation and procurement. Finally, C32 is the unit which is
responsible for Europe, the so-called „European States Branch“. The authors of the article conclude that the order apparently came down from Europe specialists in charge of signal reconnaissance. They also pay attention to the time stamp. The order was transferred to the „National SIGINT [signals intelligence] Requirements List“ in 2002. This list is the list of national intelligence targets. The possible reasons why Angela Merkel was spied on in the first place (and why precisely since 2002) will be discussed later. Referring to the status, the letter „A“ stands for active. What is interesting is that this status was apparently valid just a few weeks before Obama visited Berlin in June 2013. Lastly, „Topi“ („Target Office of Primary Interest“): „F666E“ stands for the units tasked with implementing the order. „F6“ represents the NSA’s internal name for the global surveillance unit, „Special Collection Service“ (ibid.). What the document does not indicate is whether Chancellor’s movements were also being recorded and whether all of her conversations were recorded or just connection data – in other words, the document does not point out what form of surveillance has taken place. Nevertheless, she was spied on for more than a decade, which means also when she was just party chair since she became chancellor in November 2005.
One of the politically most decisive questions is whether the spying was authorized by the US president. The operation was authorized, if the data is accurate, under NSA chief, Michael Hayden, and former President George W. Bush. However, as a part of the list called „National Intelligence Priorities Framework“ it would have had to be „presidentially“ approved by Obama. The question remains whether this has happened. One category in this list is „Leadership Intentions“ which is concerned with objectives and goals of a country’s political leadership. While Brazil and Mexico each receive a 3 on a scale from 1 to 5 (with 1 being the highest interest), the filed in case with Germany is empty. However, it got a 4 for advanced weapons system and a few other sub-items, and a 3 for both foreign policy objectives and economic stability. Contrary to other views, this list would, then, suggest that Merkel was not monitored.
When on 10th of October 2013 Der Spiegel confronted the German government with evidence that Merkel’s mobile phone had been targeted, a deep concern was felt by the German security apparatus. The country’s foreign intelligence agency, the Federal Intelligence Service (BND), was ordered by the Chancellery to scrutinize the information. At the same time, Merkel’s foreign policy adviser, Christoph Heusgen, contacted his US colleague, National Security Adviser Susan Rice, to inform her about Der Spiegel’s research, to which she replied that she would look into it. German security authorities got back shortly afterwards to the Chancellery with a preliminary result. The dates, numbers and secret codes
on the paper indicated that the information was accurate. They said that it was probably some kind of form from an intelligence agency department requesting surveillance on Merkel’s mobile phone. It became clear that it would be a political bomb if the Americans were monitoring Chancellor’s cell phone. But Rice called the Chancellery the following day to explain that Washington would deny it if reports began to circulate that Chancellor’s mobile phone had been monitored. At least that is how the message was understood. And indeed, what followed afterwards was Carney’s statement quoted in the introduction. Late that evening, this message was passed on to Der Spiegel without comment at which point editors decided to continue with the investigation. With this, both sides gained more time to prepare a plan for approaching the breach of trust between them. That there was a breach of trust was already clear since Berlin obviously doubted the statements coming from Washington and had not called off its probe, according to Appelbaum et al. (2013). And, despite the denial from Rice, there were also inquiries taking place in the US, as later became clear. The story took different shape over the weekend as the authors point out. Heusgen and Rice spoke once again but this time Rice sounded less certain. She said that the possibility the chancellor’s mobile phone was monitored could be ruled out only currently and in the future. Heusgen was put off as he asked for more information. He was told that the Assistant Secretary of State for Europe and Eurasia at the US State Department, Victoria Nuland, and the chief adviser to the president on Europe, Karen Donfried, would provide further information midweek. It was clear to the Chancellery by this time that it amounted to confirmation of their suspicions if Obama’s top security adviser no longer felt comfortable ruling out the possibility of the NSA monitoring the Chancellor.
The catastrophe was only intensified by this detail. Besides the fact that Americans monitored Merkel’s mobile phone, which is bad on its own, German leaders were left looking like complete amateurs. On a visit to Berlin that summer, Obama downplayed the notion of spying in Germany, and they had believed his assurances. Angela Merkel decided to go on the offensive on Tuesday morning. Just like Hollande, she was determined to speak personally with Obama before meeting Hollande at the EU summit in Brussels, and she did. What became at stake was the control over the political interpretation of an explosive story such as this one. In a preliminary call that Heusgen made to Obama to let him know about this, he emphasized that she would go with this public. What then followed was the above mentioned conversation between Merkel and Obama via secure landline. Pofalla informed later that day two members of the Parliamentary Control Panel (the body in Germany’s parliament in charge of keeping tabs on the country’s intelligence agencies) of what was going on. In
parallel, by contacting Der Spiegel first with a statement which contains Chancellor’s criticism of possible monitoring of her mobile phone, the administration went public with the matter. It was Merkel’s spokesman Steffen Seibert who at this point called the situation as a „serious breach of trust“. The old question that reemerged was whether the domestic intelligence agency, the Federal Office for the Protection of the Constitution (BFV) should be more focused on Americans (instead of Russians and Chinese) in their counterintelligence work. As a matter of fact, this issue was already discussed a year ago between the Chancellery and the Interior Ministry, however, the topic was due to its political sensitivity soon substituted with the one asking whether monitoring allies should be allowed. It became clear after the revelation that this was a very naive move by the Germans. Some even believe that Germans have been allowing the NSA to spy on them (BBC News 2013). The conducted attempts by Berlin to clarify the allegation were from the beginning of the NSA scandal with a mixture of ignorance and naivety (Appelbaum et al. 2013). It was at this point that BND was tasked with negotiating a „no-spy agreement“ with the US agencies. Merkel’s government feigned activity in this way while remaining largely in the dark. Actually, it primarily relied on the assurance from the US that its intentions were good. Tracking of the activities of the NSA also seems to be difficult for German intelligence agencies. That the Americans’ technical capabilities are superior to Germans’ in many ways was admitted by high-level government officials. To counter this, especially after the revelation, German agencies want to upgrade their capabilities, counterintelligence in particular (ibid.).
After the news of Chancellor’s cell phone being tapped started spreading, the BSI (the federal agency responsible for information security) and the BND took over investigation of the matter. There as well, officials could only ask question of the Americans when such sensitive issues have come up recently, nothing else. But this time the relations between Germany and the US were facing potential deterioration. It is noteworthy that Angela Merkel did not have a particularly good opinion about Barack Obama even before the revelation – she considered him overrated, according to Der Spiegel. However, it is emphasized in the same article that the Americans are also not happy with Germans when it comes to economy. The Chancellery decided to put the trans-Atlantic free trade agreement in question if the NSA affair is not properly settled. At that point, most of the German citizens were against the agreement.
As already mentioned, the scandal was the main topic at the EU summit in Brussels the following two days after the revelation, with Hollande first to bring up the issue. Merkel supported him when he called for a code of conduct among the intelligence agencies.
However, doubts soon emerged regarding Europe’s own surveillance practices. The question whether Obama knew what his agencies were actually doing as well as some other points caused mutual understanding in the group. Yet Hollande kept his position and many again seemed to share his opinion. It became obvious to Merkel that relying on promises from the US is not enough. Her intelligence coordinator, Günter Heiss, went to Washington the same week to make Americans promise a contract which would exclude mutual surveillance. The German side already then announced its determination to sign the agreement during the summer, however the US government has not shown inclination to seriously consider such an agreement. Then again, this whole issue comes down to Merkel’s mobile phone: not only did she still not want to give up using her old number but she was using it to send SMS-es and to make calls. She switched to a secure line only for very delicate conversations. Before exploring the events that followed up this revelation, it is important first to explore why it is Germany that the US was so eager to spy and whether that is compatible with public international law.
Snowden once described Germany as a target of particular interest to the American snoops (Fürstenau 2013). However, he did not specify why that is the case. In the article called „Contemporary Espionage“ Hansen notes that „Nations use espionage methods to gather information about other states’ policies, and are fundamental to developing their own policies“ (Hansen 2014: 4). According to the same article, since one can never be too sure about the intentions of another state, spying on enemies as well as on allies is evident. Mutual spying is common knowledge – it is widely accepted and everybody does it. However, it rarely comes to light. Usually, spying on allies is not considered as a violation of the standard practices of international relations. A possible reason why Germany is the most spied on country in Europe by the NSA was given soon after the first revelation of NSA activities by Snowden in June 2013. The factor in question is economy because it is the filed where Germany is most successful (RT 2013). Former NSA employee Thomas Drake says that Germany became intelligence target number one in Europe after the attacks of 9/11. The reason for that is because some of the suicide pilots had lived in Hamburg (although, it is one thing to spy on „ordinary“ citizens and another to spy on members of the government, especially the head of it).
He also says that evidence suggests that the NSA recorded Angela Merkel once, became „intoxicated“ with success and from then on just continued spying on her. But when it comes to monitoring only Angela Merkel, the economy or 9/11 are less likely to be the reasons. Der Spiegel offers two possibilities: Germany held in 2002 parliamentary elections
when Angela Merkel battled with Edmund Stoiber of Bavaria’s Christian Social Union to become the conservatives’ chancellor candidate. On the other side, and perhaps more significant for the case at hand, in the year 2002 German Chancellor at that time, Gerhard Schröder, refused to join the US in the war against Iraq. It is possible to assume that the US government could have been curious about the exact position of his main political opponent.
When dealing with the case of the German Chancellor being tapped by the NSA, one has to distinguish between intelligence and espionage. The domestic counterintelligence and security agency on United Kingdom, or the MI5, defines intelligence as „information of all sorts gathered by a government or organization to guide its decision“ (quoted in Hansen 2014: 4). It can be understood as collection, analysis, distribution and utilization of information, with the goal of furthering its own ends, relative to other states, political movements or groups. It is practiced in every state. Espionage is, on the other hand, defined also by MI5 as „a process which involves human sources (agents) or technical means to obtain information which is not normally publicly available“ (ibid.). The practice of espionage by states is also something very common.
Although the tapping of Angela Merkel by the NSA was seen as a great controversy in the world of politics, Stefan Talmon believes that it was not the case when it comes to public international law. That is because the espionage was conducted in times of peace and, as such, it does not generally violate public international law (Talmon 2013). The story would be completely different if it was conducted in times of war, where public international law contains specific rules regarding espionage. Germany can only criminalize the spying activities of individuals for foreign intelligence agencies, but the US does not commit an internationally wrongful act by monitoring Merkel’s cell phone. Germany can therefore neither take any countermeasures nor is it entitled to an apology from the US. Hansen on the other hand says that the problem is that spying activities take place out of the usual arenas of international diplomacy and out of the public eye. He continues: „According to the International Law Association’s Committee on Formulation of Customary International Law, “a secret physical act is probably not an example of the objective element. And if the act is
discovered, it probably does not count as State practice unless the State tries to assert that its conduct was legally justified“.“ (Hansen 2014: 9) (original emphasis). In order to achieve
international legal prohibition of espionage, either customary international law or international convention is needed. Thus, the United Nations General Assembly resolution on surveillance activities of foreign intelligence agencies that were prepared by Germany and Brazil in November 2013 could only be seen as morally and politically significant. This is
what Hansen meant with his statement that political motivations play an important role, since the political leaders can not avoid the reality of the situation and often work to control the discourse surrounding it once citizens are informed, as we have seen.
Other than the steps it is already starting to take (see below), it might be interesting to see which other options Germany has (and which not) to confront the US for spying on Merkel. Talmon emphasizes that the US breached the 1961 Vienna Convention on Diplomatic Relations, which established the inviolability of diplomatic agents, freedom of movement, and communications, if it tapped Merkel’s mobile phone from within the US Embassy in Berlin. He says that „The Convention requires members of diplomatic missions ‘to respect the laws and regulations of the receiving State’ and that the premises of the mission are not used in any manner incompatible with the functions of the mission“ (Vienna Convention on Diplomatic Relations (VCDR), 18 April 1961 (500 UNTS 95), Art. 41 paraf. 1 and 3, quoted in Talmon 2013: 4). Even though one of the functions of a diplomatic mission is to gather intelligence on the receiving state, only by „lawful means“ may this be done. Spying on the government of the receiving state is not covered by this. Since both the US and Germany are parties to the Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, according to Talmon, Germany is able to bring a case against the US before the International Court of Justice in the Hague for violation of the Vienna Convention on Diplomatic Relations as there are evidence of eavesdropping from within the US Embassy. As already mentioned above, because of diplomatic immunity a criminal case in the German courts against embassy personnel for conducting the monitoring will, however, regularly fail. Therefore, the only thing that Germany can do in this case is to declare the suspected spies „personae non gratae“ terminating in this way their activities at the Embassy. Besides that, it is possible for Germany to ask the US to prohibit the use of radio communication equipment at the Embassy and reduce the number of its diplomatic and other personnel.
Besides the VCDR, Talmon points out to the fact that „Eavesdropping on the Chancellor from US military bases in Germany violates the NATO Status of Forces Agreements which requires US military personnel in Germany ‘to respect the law of the receiving State, and to abstain from any activity inconsistent with the spirit of the present Agreement’.“ (Agreement between the Parties to the North Atlantic Treaty [Organization] regarding the Status of their Forces (NATO Status of Forces Agreement), 19 June 1951 (199 UNTS 67), Art. II, quoted in Talmon 2013: 5). Also, according to Art. VII of the Agreement, the authorities of the receiving State, or Germany in this case, have the right to exercise exclusive jurisdiction over members of a foreign force or civilian component and their
dependents with regarding security offences against the host state. This includes espionage or violation of any law relating to official secrets of that state (ibid.). For all the differences between the parties regarding the application or interpretation of the Agreement, they have to settle by negotiations without recourse to any outside jurisdiction. There is thus no way of establishing a violation of the Agreement, unlike in the case of VCDR.
According to Talmon, tapping Angela Merkel directly from the US without a physical link to Germany is not incompatible with customary international law. Regarding the strategic international surveillance of wireless telephone communications by the BND, the European Court of Human Rights held in 2006 that, as long as the radio signals emitted from foreign states are monitored by interception sites situated on German soil and the data collected are used in Germany, the monitoring of telecommunications which are not effected via fixed telephone lines but via radio relay links or satellite, and the use of data obtained this way does not violate the territorial sovereignty of foreign state, emphasizes Talmon. Tapping Merkel from the US would mean the exact same thing. Since it is lacking the element of unlawful coercion required by international law, remote surveillance also does not meet the requirements of an unlawful intervention in the internal affairs of Germany.
By tapping Merkel’s cell phone, the US also did not violate its international human rights obligations, says Talmon (2013). In her capacity as a private person, it is the case that she enjoys the protection of the 1966 International Covenant on Civil and Political Rights (ICCPR) against unlawful or arbitrary interference with her privacy, but state parties to the ICCPR are only obliged to ensure and respect the rights recognized in the Covenant to all individuals subject to their jurisdiction and within their territory. It can not be assumed that Angela Merkel, when residing in Germany, is subject to the jurisdiction of the US, even if one does not share the US’ view that the rights guaranteed in the Covenant are not capable of extra-territorial effect. Besides that, it is the US law and not the German one that would have to determine the questions of unlawfulness and arbitrariness of the interference by the NSA with the right to privacy. Against this background, the joint initiative of Germany and Brazil to further develop the ICCPR with a resolution of the UN General Assembly in order to protect the privacy of individuals from surveillance activities by intelligence agencies is not likely to succeed, according to Talmon. Although the US has been bound by the ICCPR since 1992, General Assembly resolution can not create new obligations of the states parties to the Covenant. Moreover, it will not be sufficient to extend the meaning of the concept of „privacy“ in order to overcome the limited territorial applicability of the ICCPR.
What next?
In the light of the allegation of the NSA spying activities, the EP also felt like taking some action against it. And indeed, on the exact same day of the revelation of tapping Angela Merkel’s cell phone by the NSA, „They’ve [members of the EP] called for US access to SWIFT database to be halted following concerns that the US is spying on the EU, and not simply trying to combat terrorism“ (Euronews 23 October 2013). As expected, the US denied any wrongdoing. Yet, within certain section of the EP there is undoubtedly a firm belief that the EU should be more careful about what it shares with the US. As a part of transatlantic cooperation following the 9/11 attacks, this agreement entered into force in August 2010 and it concerns processing and transfer of bank messaging data to track terrorists’ financial flows (hence, the name). The resolution was passed by 280 votes to 254, with 30 abstentions. It must be noted that the EP does not have formal powers to initiate the suspension or termination of an international deal. However, the Commission is obliged to reconsider a particular agreement if the EP decides to withdraw its support for it. Likewise, when considering whether to give its consent to future international agreements, the EP takes account of the response of the Commission to this demand. Although symbolic and not decisive, this resolution of the EP reflects public anger at spying activities conducted under the NSA. Talmon notes, however, that, since the US did not violate any public international law by spying on EU citizens as we have seen, such a decision by the EP to punish the US for espionage is incompatible with public international law. Even though this case is not directly linked to the central one in this thesis, it gives a good idea about the atmosphere in which the events that followed took place.
The UN resolution
As previously mentioned, after the revelation, along with Brazil, Germany started drafting a UN resolution against spying on electronic communication. It is possible that this path was chosen so that the US would not have the option of a veto. Such an initiative was planned for a long time, but the revelation of the NSA tapping Merkel’s cell phone „pulled the trigger“. She called already in July 2013 for international data protection laws to be revised. Also, a few days before that, German Justice Minister Sabine Leutheusser-Schnarrenberger had proposed an international agreement, by which data traffic would be protected by the International Telecommunication Union worldwide. The resolution alone is not able to curb
the NSA’s surveillance. However, it does call for the ICCPR to be supplemented by an additional protocol to Article 17 which would guarantee the protection of privacy rights in the digital age (Article 17 guarantees human and civil rights), which was the main aim. Although agreed upon in 1966 by the UN as already mentioned, no amendments have been made since ICCPR’s coming into force in 1976, not even with the emergence of internet. Interestingly, the resolution did not directly address the NSA, but it is clear that it is aimed at the US intelligence’s revealed spying efforts. In the words of Ray Kimball, an army strategist with policy experience on European issues, it is exactly the anger pointed at the US, and not the resolution itself that makes the US officials afraid the most: that their EU allies decide they will not share signal intelligence any more because of a concern that the SIGINT is being derived from mechanisms that violate their privacy rules (The Cable 2013). According to Anja Fähnle of Deutsche Welle „Whether the ICCPR will be extended to include an additional protocol or whether it will remain “just“ a UN-resolution makes a great difference politically“ (Fähnle 2013). Two points are clear from this perspective: for Germany, the goal is to protect human and civil rights of its (but also of all other) citizens, and for the US, the biggest concern is the maintenance of cooperation with its allies, among which is Germany. This is thus an offensive play from Germany however, no threat of ending its cooperation with the US was mentioned.
The US, along with its other intelligence partners has tried to water down the UN draft resolution by softening the language but it failed. This attempt was almost exclusively confined to the states all of which are a member of so-called „Five Eyes“ intelligence-sharing partnership: the US, the UK and Australia (Canada and New Zealand are also members). The extent to which the three countries have been left isolated was shown by the draft resolution. One can assume that the US was reluctant to be seen publicly as leading the opposition, since it pushed Australia to do it instead. However, Australia’s position was sensitive since it had its own problems with illegal spying activities – it was revealed that it attempted to monitor the private mobile phone of the Indonesian president and the first lady. To add to the pressure, its government has faced calls from a privacy group to support the resolution. It is true that Germany and Brazil made some concessions to dilute the language and to appease the US, the UK and Australia but the bulk of the original version was kept intact. What is crucial is that the resolution emphasizes that the right to privacy applies to all individuals regardless of their citizenship. Here one has to bear in mind that the US citizens have formally greater protection from the NSA than foreigners. The final draft was agreed upon on 20th of November 2013. In response to the revelation about mass surveillance by the NSA, this resolution represents the
