German BND Act: A missed opportunity for press freedom
As the German Bundestag passed the federal government's draft to reform the Federal Intelligence Service Act (or BND Act), Reporters Without Borders (RSF) considers the new hurdles that the law creates regarding the surveillance of journalists and their sources within the framework of Foreign-Foreign Communications Intelligence by the BND, Germany's foreign intelligence agency, to be inadequate.
The need for special protection of communications between media professionals and their sources has now been recognized by law for the first time. However, despite certain improvements, the legislators are failing to protect foreign media workers from digital surveillance and from the possibility of the information gathered by the BND being misused by authoritarian states. In May 2020, after reviewing a complaint lodged by RSF and several international journalists, Germany's Federal Constitutional Court in Karlsruhe ruled that the legal basis for the mass surveillance of global internet traffic by the BND was unconstitutional. Among other stipulations, it ordered that the BND Act be revised to include provisions to better protect the confidentiality of communications in confidential relationships of trust (Vertraulichkeitsbeziehungen) between media professionals and their sources.
"The law does not meet the requirements of the Court’s ruling, let alone the requirement, based on human rights, to find an appropriate balance between security interests and the right to confidentiality of communications," said Christian Mihr, Executive Director of RSF Germany. Little has changed in terms of actual surveillance practices. The BND is allowed to continue to spy on communications on a massive scale, and has even been given additional hacking powers. It can collect revealing data on media professionals and their contacts without restrictions, and pass it on to other intelligence services. We are therefore considering taking the matter back to the Constitutional Court."
In December 2020, the German government passed a draft act that was sharply criticized by RSF. Among other things, RSF objected to the continuation of the practice of passing on unfiltered traffic data, such as information on who communicates with whom and when by email, along with the corresponding subject lines. It also criticized that under the new law the BND itself will be responsible for deciding who qualifies as a journalist and therefore enjoys the corresponding protection. This runs counter to the objective of appropriate oversight of the intelligence agency, RSF argued.
RSF's efforts to have the law revised to guarantee better protection for media workers were endorsed by the OSCE Representative on Freedom of the Media Teresa Ribeiro, among others. At the beginning of March, criticism echoing RSF's concerns about the draft act was voiced at an expert panel meeting in the Committee of Internal Affairs, which is the lead committee on this matter. Several legal experts also expressed concerns about the constitutionality of the draft act. As a result, the committee decided to make certain improvements to the government's draft. For example, the text now stipulates that the process by which the BND decides which relationships fall into the category of confidential relationships of trust must be documented, a step which is meant to facilitate the independent review of such decisions made by the intelligence service. Likewise, the criteria for BND surveillance of journalistic communication in situations in which Germany's internal security is considered to be in danger have been tightened.
However, despite these changes, the key points of criticism voiced by RSF remain unaddressed. By allowing the BND to continue to collect, analyse and pass on the traffic data of media professionals and their contacts to other intelligence agencies without restrictions, the law leaves the current surveillance practices for the most part unchanged. It makes a dubious distinction between the personal information of those whose communications enjoy special protection and supposedly non-personal data or device data, which often reveal just as much about a specific individual and their contact networks and behaviour.
In addition, oversight of the intelligence agency remains fragmented; the powers of the individual oversight bodies are too limited, especially in view of the rapid advances in surveillance technology. At the same time, the law gives the BND new powers to hack foreign servers and systems, thus further expanding the intelligence services' scope for state surveillance. In view of these significant shortcomings, RSF Germany and the Society for Civil Rights (GFF) are considering filing another constitutional complaint.
Germany is ranked 11th out of 180 countries in RSF's 2020 World Press Freedom Index.