Danes commemorate victim outside Synagogue in Copenhagen. Demotix/Kenneth Nguyen. All rights reserved.It began so promisingly. Forty thousand people of all ethnicities, religions and political persuasions gathered peacefully to unite against the extremism that had just claimed the lives of two people at a free speech debate and a synagogue in Copenhagen. The speakers included prime minister Helle Thorning Schmidt, who stressed that “We are determined to stand watch over our values. We insist on protecting our freedom”. But the political reaction to the attacks on February 14 is difficult to square with the sentiments displayed by civil society and leading politicians at the mass memorial. In fact, the Danish government’s most concrete response has been the proposal of a series of measures that will undermine the very values that they insist terrorists will never succeed in displacing.
On February 19, the Danish government presented a 12-point plan to counter terrorism (Denmark has already passed two comprehensive anti-terrorism bills in 2002 and 2006). Among the initiatives was a proposal to allow the Danish Defense Intelligence Service (DDIS) to conduct warrantless surveillance of Danish citizens abroad. The DDIS is responsible for both Denmark’s foreign and military intelligence. Among its working methods is sophisticated signal intelligence, though its activities are shrouded in secrecy with minimal legal or parliamentary oversight. Currently DDIS surveillance targeting Danes abroad requires a warrant, which must be obtained by the (domestic) Danish Security and Intelligence Service (DSIS) and issued by a judge. Only where the DDIS obtains information on Danes “by chance” is it allowed to include, share and process such information on Danish citizens in foreign parts. Accordingly, the government’s proposal – warrantless surveillance on Danes abroad – would have represented a significant shift in the powers afforded to the DDIS and the legal protection of Danish citizens. In fact, the proposed powers would have, legally speaking, exceeded those of the NSA, which since an amendment to the FISA Act in 2008 has been obliged to obtain a warrant from the FISA Court, when conducting surveillance of US citizens abroad.
There may be good reasons why the DDIS should be allowed to listen in on Danes who have joined IS in Raqqa, but warrantless surveillance, a disproportionate measure in itself, would also open up the risk of abuse. For instance one could imagine a scenario where the domestic DSIS had a Danish citizen on the radar, but not enough evidence to obtain a warrant for surveillance. If that person was to leave Denmark for vacation, family visit or a business trip, the DDIS could gain access to this person’s communication and share the information with the DSIS, thereby circumventing the legal protection against warrantless search and seizures under Danish law. The proposal and the government’s arguments in favor of it also set an eerie precedent. While the prime minister grossly misrepresented the current powers of the DDIS, her Social Democratic Party’s spokesperson on defense affairs argued that court warrants were unnecessary since surveillance would have to be authorized by the director of the DDIS – “when the director says things are OK, it’s because there is a reasonable suspicion”.
