A test case.

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A German Snowden Would Probably Go Free

Leonid Bershidsky is a Bloomberg View columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.
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Two men from the Netzpolitik.org blog have given the world an opportunity to find out what could have happened to Julian Assange and Edward Snowden had they been German citizens. Perhaps surprisingly, they might have fared better, thanks to strong sentiment in whistleblowers' favor in German society.

On July 30, Markus Beckedahl and Andre Meister received a letter from the German prosecutor general's office, informing them they were suspected of high treason in connection with two posts that appeared on the blog in February and April.

The posts dealt with plans by the Office for the Protection of the Constitution to launch a secret social-network surveillance project and to expand "surveillance of Internet-based personal communications" in general. These posts were based on leaked documents, and the prosecutor's office letter listed Beckedahl and Meister as accomplices to the unknown person or persons who had given them the information. 

The journalists at The Guardian, The Washington Post and other publications that based articles on data from WikiLeaks or the documents Snowden lifted from the U.S. National Security Agency have done exactly the same. Yet while the whistleblowers themselves have faced the threat of prosecution and elected to hide out -- Assange of WikiLeaks in the Ecuadorean embassy in London, Snowden in Hong Kong and then in Moscow -- the journalists weren't threatened with jail time.

German law describes the perpetrator of treason as someone who either communicates a state secret to a foreign power or "otherwise allows a state secret to come to the attention of an unauthorised person or to become known to the public in order to prejudice the Federal Republic of Germany or benefit a foreign power and thereby creates a danger of serious prejudice to the external security of the Federal Republic of Germany." The punishment is no less than one year in prison; there is no upper limit. 

It's been more than 50 years since treason charges have been brought against German journalists. The last case, from 1962, came to be known as the Spiegel Affair: The eminent weekly's two editors-in-chief and publisher were charged and arrested along with the author of a report that said West Germany was unprepared to defend itself against a Warsaw Pact attack. The Defense Ministry, targeted in the piece, said the magazine had revealed 41 state secrets. Though Spiegel employees spent several months in jail, the affair ended in the resignation of Defense Minister Franz-Josef Strauss and no conviction for the journalists.

Prosecutor General Harald Range may not have felt the weight of that precedent upon his shoulders because Beckedahl and Meister are mere bloggers, not professional journalists employed by a venerable publication such as Der Spiegel. "When something is classified as confidential, that concerns journalists as well as wannabes," Jens Koeppen, a senior legislator from Chancellor Angela Merkel's CDU party, tweeted on Friday. 

The German press, however, treated the two men as colleagues, regarding the prosecutors' actions as an attack on press freedom. The Sueddeutsche Zeitung likened the charges against Netzpolitik.org to Chancellor Otto von Bismarck's 127-year-old attempt to accuse journalists of treason for the publication of the German crown prince's war diaries. 

The investigative site Corrective.org republished the leaked documents and called on the prosecutor's office to investigate it, too. Legislators from opposition parties have pointed out that, rather than harass the bloggers, the authorities should investigate NSA spying on German soil.

So on Friday, Justice Minister Heiko Maas said he doubted the legitimacy of the Netzpolitik investigation, making it look as though he'd just learned of it, though Der Spiegel claimed he had long been aware of the prosecutor's interest in the leaks. Today, Prosecutor General Range suspended the investigation "for the good of the press and the freedom of expression" pending an inquiry into whether the bloggers actually disclosed any state secrets. And Merkel publicly sided with Maas: Her spokesperson said the justice minister had her full support, press freedom was extremely important and decisions involving it always mean striking a sensitive balance.

Since Range is a political appointee and Maas is his superior, the investigation is probably as good as dead. Though the German authorities' initial response was harsher than in English-speaking countries, the speed of the subsequent retreat may well mean that not just the journalists but also their sources stand a better chance in Germany than in the U.S.

Polls consistently show that even Merkel's relatively conservative voters consider Snowden a hero rather than a criminal. Germans, fiercely protective of their privacy, believe the public interest is served when information about surveillance is disclosed, not concealed. 

That doesn't mean German whistleblowers will have an easy time of it: The attempt to charge Beckedahl and Meister shows the government won't hesitate to act against them. But if the press and public opinion can be mobilized, they can fight back effectively. That's more encouraging than the situation in the U.S., where almost two-thirds of Americans familiar with the Snowden case have a negative opinion of him. So prosecutors who go after future whistleblowers can be assured of public support. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:
Leonid Bershidsky at lbershidsky@bloomberg.net

To contact the editor on this story:
Paula Dwyer at pdwyer11@bloomberg.net