TUTZING, Germany — Few German politicians know the country's ambiguous relationship with state surveillance better than former justice minister Sabine Leutheusser-Schnarrenberger.

The 64-year-old can claim a role in bringing down three major laws in her career to protect citizen's rights, learning the lessons from bitter battles at home, against the conservative interior ministry, and in Brussels, against current European Commissioner for Trade Cecilia Malmström.

Now, she's suiting up again to topple Germany's latest data-retention law, passed last November, which requires phone and Internet providers to store call records, IP addresses and other identification records, without any suspicion of wrongdoing by users.

“This is about a right to privacy, a human right that is insidiously undermined by this new law,” she says during an interview. “I can’t just sit here and watch that. This is why I will do everything I can do to topple it.”

Having left office, the veteran privacy advocate with the contact book of a career politician has no more electorate to lose — while as a board member of the liberal Friedrich Naumann Foundation, she still has access to Germany's political elite.

From her office by picturesque Lake Starnberg in Bavaria, Leutheusser-Schnarrenberger prepares for her last grand battle, building coalitions with other digital rights movements and putting herself at the forefront of an effort started by her Free Democratic Party (FDP) to have the law declared unconstitutional.

For Leutheusser-Schnarrenberger — swept from office when FDP was annihilated at the ballot box in 2013 — the law represents a betrayal of her legacy.

Born in 1951, she was raised in West Germany, whose 1949 constitution had been drafted around the definition that certain basic rights were to be guaranteed by all state power, in contrast to the Weimar Republic's constitution, which had allowed the Nazis to suspend basic rights when seizing power in 1933. As part of the first post-war generation in Germany to critically appraise the country's Nazi past, Leutheusser-Schnarrenberger, a lawyer, sought to protect these constitutional basic rights.

'She faces a difficult fight after the Brussels and Paris attacks tipped public opinion in favor of more surveillance'

Three years older than German Chancellor Angela Merkel, she rose to power as one of the country's most influential privacy advocates during an age when female politicians in Germany were still largely relegated to do traditional portfolios like the family ministry that Merkel herself held under Chancellor Helmut Kohl.

Throughout decades as a politician, she has seen her role within Germany's political landscape as the watchdog making sure that no changes in legislation violate or hollow out any of the constitutional basic rights, including the right to privacy.

In this latest battle, some say she faces a difficult fight after the Brussels and Paris attacks tipped public opinion in favor of more surveillance over civil liberties. But Leutheusser-Schnarrenberger has been here before.

A duel of two women

In 2006, the EU passed a directive that prompted member countries to store telecommunication data and if necessary provide it to law enforcement agencies. Two years later, Germany passed a corresponding amendment to its telecommunication law. But in March 2010, following a mass constitutional complaint by around 34,000 Germans, with Leutheusser-Schnarrenberger one of the leading forces behind it, the German Federal Constitutional Court struck it down.

That sparked anger in Brussels, particularly with the Swede Cecilia Malmström, then commissioner for migration and home affairs.

“She was convinced that, after the terrorist attacks in Madrid and London had increased public pressure on the EU, something had to be done,” Leutheusser-Schnarrenberger says.

Malmström — now trade commissioner — did not reply to an interview request.

“She wanted to make data retention her masterpiece, something she would be remembered for," Leutheusser-Schnarrenberger says. "She ended up choosing the completely wrong battle.”

Internal EU notes, letters, reports and emails obtained through a Freedom of Information request by Amsterdam-based digital rights advocacy group Bits of Freedom and shared with POLITICO, show how the relationship between Brussels and Berlin broke down.

While Germany kept informing the Commission that its justice ministry was developing proposals for implementing the 2006 directive, Leutheusser-Schnarrenberger said she did not actually plan on re-establishing the law, which she thought unduly invasive.

Malmström, aware of the justice minister’s reticence, threatened to take the country to court.

In spring 2012, the women met in Brussels. Leutheusser-Schnarrenberger explained it was almost impossible for her to get a new law passed before the federal election in September 2013. The idea was to buy time, a maneuver she had previously discussed with Chancellor Angela Merkel.

But Malmström stood firm and the meeting ended without a solution. About a month later, the Commission requested the European Court of Justice (ECJ) impose penalties on Germany.

"What the f--k?"



Documents recently obtained by Bits of Freedom shed new light on how Leutheusser-Schnarrenberger fell victim to internal opponents at Germany's interior ministry, naturally more hawkish on security issues, who were also pushing for the country to alter its law to accommodate the EU directive.

In June 2011, representatives from Malmström's department met in Berlin with officials at the interior ministry, then led by Hans-Peter Friedrich, a conservative Bavarian hardliner.

Malmström's team reported back that the interior ministry had encouraged the Commission's plan to take legal action against Germany in order to increase pressure on Leutheusser-Schnarrenberger's traditionally dovish justice ministry to change the data-retention legislation.

“CDU support the COM's [Commission's] efforts to enforce DRD [the 2006 data retention directive] and encourage greater pressure through infringement process,” the Commission's internal report stated in EU legalese. (At the time the interior ministry was in the hands of the Christian Social Union (CSU,) the Bavarian sister party of Merkel’s Christian Democratic Union (CDU,) which the Commission visitors apparently mistook for one party.)

When POLITICO showed the EU report to a former high-ranking official at the justice ministry who was involved in the negotiations at the time, their response was "What the f--k?"

Friedrich, who is still a member of the German parliament, said he did not remember details of the incident.

'There is nothing better than can happen to a justice minister than to have the European Court of Justice confirm you were right' — Sabine Leutheusser-Schnarrenberger

Leutheusser-Schnarrenberger had to wait two years to get her revenge, when the ECJ ruled in April 2014 that the EU data-retention directive was unconstitutional.

But by then the German was out of office, after her FDP party failed to reach the five percent threshold necessary to enter the government.

“There is nothing better that can happen to a justice minister than to have the European Court of Justice confirm you were right,” Leutheusser-Schnarrenberger says. “It certainly would have been nice to still be in office at that point.”

Her partial triumph was also temporary: In autumn 2015, her successor passed a new data-retention law.

A vice chancellor's tit-for-tat

With Germany's political map redrawn, Merkel’s conservatives entered a grand coalition in 2013 with the Social Democrats (SPD). The ministry of justice went to the SPD's Heiko Maas, while the interior ministry remained in conservative hands with the CDU’s Thomas de Maizière, a vocal supporter of data retention.

“I did not think that the new government would just turn around and do pretty much the opposite of what we stood for,” Leutheusser-Schnarrenberger says. “It is remarkable that the minister of justice did not weigh in on this decision, which I believe was largely influenced by party politics.”

'Data retention is crucial to help prevent further damage once we are in a situation of a terrorist attack' — Armin Schuster, MP

It’s a careful way of saying what various SPD sources confirmed on condition of anonymity: Justice Minister Maas was pushed by SPD party head Sigmar Gabriel, the new economy minister and vice chancellor, who had already advocated for a new data retention legislation during the coalition talks with Merkel in 2013, into implementing the law.

Rumors within the SPD say that Maas, who at first tweeted his opposition to the law in December 2014, could just be waiting for a new constitutional complaint to bring it undone.

To the outside, however, he defended the new law. "Our new draft bill has very little to do with the old law," he said in a newspaper interview in July 2015, before the law was implemented.

Back in the ring

Immediately after the new law passed Leutheusser-Schnarrenberger gave TV and print interviews opposing it. In January 2016 she published the manifesto “We will topple [the data retention law]” with Burkhard Hirsch and Gerhart Rudolf Baum, two former government ministers in their mid-80s.

Armin Schuster, an MP from the CDU who heads the conservative faction of the Bundestag's home affairs select committee, said he "doesn't see" the constitutional complaint succeeding.

“We looked closely at the rulings, both of Germany's constitutional court and the European Court of Justice, when drafting this law," Schuster said, "and both rulings say specifically that a data retention law is not unconstitutional per se."

Leutheusser-Schnarrenberger is undeterred.

Liberty vs. security



Leutheusser-Schnarrenberger, born in North Rhine-Westphalia and a longtime resident of Bavaria, spent a decade climbing the ranks as a young lawyer in a public patent office before joining parliament in 1990. Two years later she was justice minister, but resigned in 1995 over constitutional changes to allow acoustic monitoring of private space.

“As democrats, we have to remain immune to limiting civil rights, and to the insidious expansion of state surveillance,” she told the Bavarian bar association in a 2012 speech.

However, just as Madrid and London added impetus to the 2006 directive, the risk is that Brussels and Paris have shifted momentum in favor of those who support giving governments powers to hold onto users' data.

“We don’t know how many attacks were already prevented, as our police and our intelligence services are doing a good job," Schuster says. And, he adds, "data retention is crucial to help prevent further damage once we are in a situation of a terrorist attack, because it makes it easier to immediately access and understand the networks behind an attack.”

Leutheusser-Schnarrenberger has given the same answer to similar arguments for years.

“All security agencies, both on the national and state level, have never provided any comprehensive study that would prove the necessity of data retention,” she says.

It's true. But then again, at least in Germany, data retention has not been in effect long enough for a study to produce reliable results -- a direct result of Leutheusser-Schnarrenberger's own efforts.

This article was updated to correct the name of the foundation on which Leutheusser-Schnarrenberger is a board member.