Should the BND be allowed to spy on the telephone calls of foreign nationals in third countries and analyse their internet data – thus in effect abolishing the private sphere of billions of people – as the German government has authorised it to do? How can particularly vulnerable groups such as journalists be protected from this mass surveillance? These questions, which are being discussed all over the world at the very latest since the revelations by NSA whistleblower Edward Snowden, will now be debated before the Constitutional Court in Karlsruhe.
The anticipated landmark ruling by the constitutional court will be the first on the BND’s surveillance activities in over 20 years. With its decision, the Federal Constitutional Court will for the first time express its opinion on this subject in the light of the massive increase in surveillance possibilities resulting from digitization. The Constitutional Court seldom holds oral hearings. They are typically reserved for proceedings deemed by the judges to be of fundamental importance. In 2018, for example, only two oral hearings took place before the First Senate of the Constitutional Court – despite the fact that more than 3,000 complaints were filed with the First Senate alone in that year.
Legalised foreign surveillance
More than seven years after Edward Snowden exposed a global system of mass surveillance by intelligence agencies, the Federal Constitutional Court, the supreme constitutional court for Germany, will pronounce judgment on the legality of the country’s involvement in these activities. In the aftermath of the National Security Agency (NSA) spying scandal, a Bundestag investigation committee brought to light the fact that the BND served as a vehicle for the NSA, which prompted the coalition government at the time to pass a new BND law. But instead of placing clear restrictions on the activities of the foreign intelligence service, the German government legalised what amounts to almost blanket foreign surveillance – despite massive protests from civil society.
The Society for Civil Rights (GFF) then joined forces with RSF to coordinate an alliance of internationally renowned journalists and media organisations, and together they filed a constitutional complaint against the BND law at the end of 2017. The complainants fear that among other things the BND’s surveillance measures undermine the protection of sources: if intelligence agencies store and process every communication, contacts all over the world will gradually lose trust in the media – and in the worst case they will no longer inform the press about abuses. This also leaves a back door open for the BND to undermine editorial confidentiality in Germany if, for example, in the course of large-scale international investigations such as the Panama Papers case, it intercepts the communications of a German media outlet’s foreign media partners in third countries rather than those of the editorial staff based in Germany. In the oral hearing, the Federal Constitutional Court will listen to the arguments of both parties, ask questions, and seek the advice of experts such as IT specialists. The First Senate will then, after a few months of internal discussions, come to a decision and make its ruling public.
The BND law was passed by the Bundestag in October 2016 and came into effect at the beginning of 2017. The coalition government in Berlin had decided to reform the BND law after highly questionable BND practices came to light in the wake of the 2013 NSA spying scandal. As regards its activities in the area of strategic telecommunications surveillance in particular, the intelligence service had clearly been acting without sufficient legal basis. In this particular form of mass surveillance, the BND taps into major data transmission lines and filters the data using so-called "selectors". These can be words or the telephone numbers and email addresses of individuals whom the BND considers to be persons of interest. Numerous cases of the intelligence agency targeting journalists havedelcc already come to light in the past. In February 2017, a report in the German magazine Der Spiegel revealed that since 1999 the BND had apparently been deliberately targeting foreign journalists working for renowned media with its surveillance, including the BBC, Reuters and the New York Times.
Instead of restricting the BND's activities, the German government legalised the practices in the new BND law. The legislation offers different degrees of protection against surveillance depending on a person's nationality: the foreign intelligence agency is not allowed to intercept the communications of German citizens, there are restrictions regarding the communications of EU citizens, and those of non-EU citizens can be intercepted provided the measure serves to protect "Germany's capacity to act". The latter is essentially an authorisation to filter communications on a mass scale outside the EU. Provisions protecting the rights of journalists such as those set out in the related G-10 Act or in the Code of Criminal Procedure are entirely lacking.
About the complaint:
Aditionally to RSF further plaintiffs are journalists and human rights activists from various countries including the winner of the Alternative Nobel Prize Khadija Ismayilova from Azerbaijan and the Mexican investigative journalist Raúl Olmos. The alliance's legal representative is Prof. Dr. Matthias Bäcker, a professor of law at the Johannes Gutenberg University Mainz.
In addition to the Society for Civil Rights (GFF) and Reporters Without Borders (RSF), the Deutsche Journalisten-Verband (the German Federation of Journalists), the Deutsche Journalistinnen- und Journalisten-Union in ver.di (the German Journalists' Union), the journalist network n-ost, and Netzwerk Recherche are also members of the alliance endorsing the complaint.
Already back in 2017 German Federal Administrative Court in Leipzig delivered a decision upholding a complaint lodged by RSF imposing for the first time in decades restrictions on the BND's metadata gathering.
Germany currently ranks 14th out of the 180 countries on the World Press Freedom Index.