In a troubling escalation of state overreach, German prosecutors in Göttingen have launched a criminal investigation against three X managers, including two Americans and Diego de Lima Gualda, former head of X's Brazil operations, accusing them of "obstruction of justice." Their alleged crime? Adhering to a bilateral Mutual Legal Assistance Treaty (MLAT) by directing German requests for user data to US authorities, rather than handing over sensitive information directly. This unprecedented move, marking the first time social media executives face criminal charges in Germany for handling international data requests, signals a dangerous shift toward authoritarian control over online speech. As Germany weaponises its laws to target platforms and their employees, Australia and other democracies must take heed, reinforcing protections for free expression to prevent a similar slide into digital tyranny.
The Case: Criminalising Compliance with International Law
The investigation stems from X's policy of routing German requests for user data through US legal channels, as required by the US-Germany MLAT. This treaty, in force since 2010, establishes a formal process for cross-border data sharing, ensuring requests from German prosecutors are reviewed under US law before companies like X are compelled to comply. The process protects user privacy and aligns with international legal norms, yet Göttingen prosecutors have labelled it criminal interference. Their frustration arises from X's refusal to grant direct access to account data in cases involving posts deemed offensive, such as those displaying banned symbols like swastikas or alleged defamation.
One notable case involved a post containing a swastika, which X geo-blocked in Germany but declined to identify the user, citing MLAT procedures. This led to stalled investigations and dropped cases, prompting prosecutors to target X's managers. The Göttingen office, responsible for digital "hate speech" enforcement in Lower Saxony, gained notoriety after a 60 Minutes segment in February 2025 showcased armed raids on citizens for online posts, including a 14-year-old whose home was searched over the phrase "everything for Germany." Such actions have drawn condemnation, notably from US Vice President JD Vance, who called Germany's approach a threat to transatlantic values and free speech.
X, represented by the international law firm White & Case, is fighting back. The company has filed motions in German district courts, arguing that demands for direct data access violate the MLAT and US privacy protections. While some courts have upheld Germany's Telecommunications Digital Services Data Protection Act (TDDDG), which mandates data disclosure for criminal investigations, X has escalated the issue with a constitutional challenge in Wiesbaden's administrative court. The suit questions whether Section 22 of the TDDDG aligns with German constitutional protections and EU law, with potential escalation to the Federal Constitutional Court or the European Court of Justice.
Anarcho-Tyranny in Action: Selective Enforcement and Speech Suppression
This case exemplifies "anarcho-tyranny," a term describing a state that neglects core duties like public safety, while aggressively policing speech and thought. Germany's approach mirrors Britain's, where petty crimes often go unpunished, but dissenters face swift retribution. The TDDDG, enacted to combat online "hate speech," requires platforms to disclose user data for content deemed criminally relevant, often vaguely defined as defamation or extremist symbols. Section 21(2) of the TDDDG stipulates that data disclosure requires a court order confirming criminal relevance, yet prosecutors are pushing for direct access, bypassing international treaties and due process.
The political backlash underscores the authoritarian bent. Green Party MP Anna Lührmann called X's resistance a "scandal," demanding government institutions abandon the platform for alternatives like Mastodon or Bluesky. Her claim that X undermines "fair competition" and "democracy" by algorithmically shaping discourse reveals a deeper agenda: controlling the digital public square. This echoes Germany's broader regulatory framework, including the Network Enforcement Act (NetzDG), which mandates platforms with over two million users to remove illegal content within 24 hours or face fines. NetzDG, amended in 2021 to require reporting of hate crimes to the Federal Criminal Police, has been criticised for chilling free speech, though studies suggest overreporting hasn't led to widespread content takedowns.
Germany's constitutional protections, under Article 5 of the Basic Law, guarantee freedom of expression for all persons, including non-citizens and legal entities. However, these rights are limited by laws targeting extremist speech, such as Section 130 of the Criminal Code, which criminalises Holocaust denial or glorification of National Socialism. While these laws aim to prevent historical atrocities, their broad application, coupled with the TDDDG's data demands, risks overreach. The Federal Constitutional Court has ruled that speech restrictions must be proportionate, yet the pursuit of X managers suggests a punitive approach to platforms resisting state demands.
Global Implications: A Threat to Free Speech
Germany's actions have far-reaching consequences. Targeting X employees for following international law sets a precedent for criminalising corporate compliance, pressuring platforms to prioritise state demands over user privacy. This could embolden other nations to adopt similar tactics, eroding global free speech norms. The EU's Digital Services Act (DSA), which replaced parts of NetzDG in 2023, imposes procedural constraints on platforms, but aligns with Europe's constitutional traditions, emphasising proportionality. Germany's aggressive enforcement, however, tests these boundaries, potentially clashing with EU law's primacy, as affirmed by the German government in 2022.
In Australia, this serves as a stark warning. Australia's implicit free speech protections, derived from High Court rulings like Lange v. Australian Broadcasting Corporation (1997), are narrower than the US First Amendment. Laws like Section 18C of the Racial Discrimination Act and strict defamation statutes already constrain expression, while proposed misinformation bills have raised censorship fears. Germany's tactics, using criminal law to compel data disclosure, could inspire similar measures, especially if Australia adopts digital ID systems or expands surveillance powers. A hypothetical scenario where Australian authorities demand user data from platforms for "harmful" posts could mirror Germany's, chilling dissent and undermining privacy.
Australia's Path Forward: Safeguarding Liberty
To avoid Germany's slide into digital tyranny, Australia must act proactively:
1.Strengthen Free Speech Protections: Enact a federal free speech act or constitutional amendment, modelled on the US First Amendment or Canada's Charter, with a J. S. Mill-like test limiting restrictions to speech inciting imminent lawless action.
2.Protect User Privacy: Legislate clear protocols for cross-border data requests, ensuring compliance with international treaties like MLATs and prioritising user rights under privacy laws.
3.Limit Surveillance Overreach: Reject digital ID schemes that could enable mass monitoring and ensure police powers are subject to judicial oversight to prevent selective enforcement.
4.Encourage Platform Independence: Support decentralised platforms like Mastodon to diversify the digital ecosystem, reducing reliance on centralised entities vulnerable to state pressure.
Germany's investigation of X managers is a dangerous step toward state control over online speech, cloaked in the guise of combating hate. By criminalising compliance with international law, Germany risks setting a global precedent for authoritarian censorship. Australia, with its own vulnerabilities, must heed this warning, fortifying free speech and privacy protections to preserve its democratic ethos. The fight for a free internet is global, X's resistance, backed by legal challenges, is a stand for all democracies. As dystopian visions of surveillance and control loom,the stakes are clear: protect free expression, or risk a future where the state dictates what can be said and who can say it.
https://reclaimthenet.org/germany-investigates-x-executives-over-user-data-refusal