It shouldn't be surprising to anyone who knows their history that Germany is a nation that's deeply suspicious about state surveillance. In fact, Germans consider privacy an absolute right and an integral aspect of modern democracy.
That's why the netzpolitik.org controversy this summer came as such a shock. When the German government launched a treason investigation into two netzpolitik journalists for reporting on secret plans to expand online surveillance, Germans leapt to the reporters' defense. The hashtag "#Landesverrat" (treason) was almost instantly trending on Twitter, and their case generated protests on the street, too.
The German government has since closed the case on the grounds that the leaked documents did not constitute a state-secret and fired a top prosecutor over the matter. But the entire episode serves as a warning for Germans – and anyone else – who care about openness and transparency. Because without the public outcry, it's likely the investigation would have continued, and the journalists would have faced legal action. And if something like this can happen in Germany, one of the most open countries in the world, it can happen anywhere.
The last time Germany faced a challenge to the freedom of its press of this calibre was the landmark Spiegel Affair of 1962. Following the controversial publication of details regarding the performance of West Germany’s defense forces, agents raided journalists’ homes and offices and arrested Der Spiegel editor Rudolf Augstein. He was imprisoned for 103 days.
Then, as now, news of the investigation sparked mass protests and outrage. Defense Minister Franz-Josef Strauss lost his job over his involvement in the arrests and underlying scandal.
There is a startling parallel to the Spiegel Affair in the 1971 Pentagon Papers leak in the United States. In that instance, American authorities charged whistleblowers Daniel Ellsberg and Anthony Russo under an Espionage Act from 1917 and the attorney general at the time obtained a court injunction to stop The New York Times from publishing the documents. In a similar fashion to the Spiegel Affair, a judge eventually dismissed charges against Mr. Ellsberg after it was discovered that White House officials had engaged in illegal efforts to discredit the whistle-blowers. But where the Spiegel Affair marked a turning point in the political and democratic culture of post-war Germany, the release of the Pentagon Papers has had no such effect on the American public.
When Edward Snowden leaked classified information from the National Security Agency in 2013, the reaction from the government was the same as in 1971: prosecute the whistleblower for violating the Espionage Act from 1917. For the journalists at netzpolitik, widespread public outcry and protest forced the government to make an about-face. In doing so the government has even ironically attempted to paint themselves as the champions of transparency and a free press. But in the US, a country that is apparently far less concerned with privacy and governmental transparency, who will stand up for the whistleblowers?
The principles of transparency and openness are at great risk if we continue to allow governments to seek out and prosecute those who leak important and revealing information for the benefit and information of the people. In the words of the American Declaration of Independence, “Governments are instituted among men, deriving their just powers from the consent of the governed … whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”
It is the duty of the people to hold their governments to account. Whistleblowers play a key role in enabling this scrutiny through transparency. As citizens, as free businesses, and as a species that requires social interaction and connectivity to thrive, we should all do more to protect them.
Rafael Laguna is chief executive officer of Open-Xchange. Follow him on Twitter @rafbuff.