Federal archiving - Germany's most boring law has a sweet exemption for intelligence agencies

If you are not a historian or a journalist, Germany's recently changed Federal Archiving Law (Bundesarchivgesetz) may be one of the country's most boring laws. Although the blogster suspects there are some even more boring legal codes out there.

A short article on this website (in English) highlights the improvements and mentions the wording that has caused journalists and the data protection commissioner to speak of "free reign" for intelligence agencies.

Without doubt, reducing of the "term of protection" for documents referring to private individuals from 30 years to 10 years after the death of the affected individual is an improvement.

Previously, the wait time of 30 years after the death of an individual also applied to office holders, and it has definitely contributed to a more, let's say leisurely pace of studying the country's recent leaders. Take West Germany's first chancellor, Konrad Adenauer. The enthusiastic praise of the gentleman whose name graces the party foundation/think tank of the Christian Democratic Party includes this:

The governments he led prepared the ground for the successful construction of a new democracy. Some epoch-making decisions will remain connected to the 'Adenauer era' forever. In foreign politics, these include the achievement of national sovereignty, the establishment of close ties with the free West, the reconciliation of France, and the unification of Europe; in domestic policy, they include the integration of refugees and displaced persons as well as the construction of social market economy, a novel economic order amalgamating the promotion of free competition with the responsibility of social government.

Sitting in the archives, protected by the 30 years post demise clause of the archiving law as well as a certain reluctance to investigate the founding father, were documents, files, and memos that show the grandfatherly figure in a different light.

Autocratic and abusive, for example. Adenauer had the country's intelligence agencies spy on the Social Democratic politician and later chancellor Willy Brandt in ways that German paper Frankfurter Rundschau says "by far exceeded Nixon's Watergate".

Under the revamped federal archiving law, the posthumous protection for office holders is abandoned.

So, you might, if you are lucky, get to read the dirt on the current Christian Democratic saint, Mr. Kohl, sooner than for Adenauer. And dirt there will be.

Given these substantial improvements, what prompted "all things digital" web site netzpolitik.org to talk about the archiving law in a highly critical article on data collection by German intelligence agencies?

The law contains a provision that says documents of intelligence agencies only have to be offered to the Federal Archives if not prevented by “compelling reasons based on identity protection or protection of sources and practices”.

As netzpolitik explains: What makes the protection of sources and methods so convenient is that only the intelligence agencies themselves determine what deserves protection. And the creativity of the agencies in declaring files as relevant to sources and methods may well be the single ability no one has ever doubted.

Under the previous version of the law, all documents had to be transferred to the archives unless they other provisions for deletion applied.

The lesson of this?

No law is too boring to deserve close scrutiny.