December 27, 2017

Germany: Landmark ruling against the BND

The German Federal Intelligence Service (BND) in Berlin / AFP
Following a ruling with immediate effect the German foreign intelligence agency BND is no longer allowed to collect and store the call detail records of Reporters Without Borders Germany (RSF Germany) phone calls in its metadata analysis system "VerAS". The Federal Administrative Court in Leipzig delivered a decision last Wednesday (13.12.) upholding a complaint lodged by RSF Germany. With this ruling for the first time in decades restrictions have been imposed on the BND's metadata gathering.

The ruling shows that it is worthwhile for human rights organisations to go to court to defend themselves against the mass storage of data by the BND. Thanks to this ruling other individuals and organisations with the same complaint can now stand up to the BND” said RSF Germany’s executive director Christian Mihr. The ruling is a historic success for Reporters Without Borders because we have succeeded in setting boundaries on the BND’s activities. At the same time it strengthens our own activities because persecuted journalists from authoritarian states like Uzbekistan or China need to be able to rely on their communications with us remaining confidential.”

RSF Germany had lodged a complaint against the BND with the Federal Administrative Court, the court of first and last instance for this case, on 30 June 2015. The lawyer Niko Härting represents RSF Germany in the proceedings. The complaint is directed among other things against the VerAS system with which the BND has also been gathering the communications metadata of German citizens since 2002 – without any legal basis.

The entire “Foreign-Foreign Signals” communication as well as conversations between persons in Germany and abroad and call detail records that were supplied to the BND by friendly intelligence services are affected by these surveillance measures. The storage operation is so comprehensive that it can also include journalists who are only indirectly connected via several other communication partners with, for instance, a terrorist suspect.

In a hearing that took place in December 2016, RSF Germany had already scored a partial victory when the Federal Administrative Court ordered the BND to provide clarification about its metadata gathering. At the hearing, the BND’s representatives were forced to admit that the VerAS system can be used to analyse every node in a contact network – in principle “even to the 14th level”.

In another section of the lawsuit RSF Germany accused the intelligence agency of spying on its email traffic with foreign partners, journalists and other persons through its signals intelligence surveillance. In December 2016, the court ruled that this part of the lawsuit was inadmissible. In April 2017, the Federal Constitutional Court in Karlsruhe refused to admit for examination RSF Germany’s constitutional complaint against this decision on the grounds that RSF had not adequately demonstrated that the organization was directly affected by the BND’s surveillance.

For this reason at the beginning of December RSF Germany lodged a complaint with the European Court of Human Rights (ECtHR) over the mass surveillance practices of the BND.

Germany currently ranks 16th out of the 180 countries on the World Press Freedom