Unfiltered transfer of traffic data
In its position paper on the draft bill, RSF criticizes in particular the BND's continued unrestricted powers to evaluate and pass on metadata, which accounts for the bulk of the data collected by the agency. Telecommunications metadata include information such as the time or duration of a communication or the subject lines of emails. This data can easily be traced back to individual persons and for example provide extensive insights into the contact networks of media workers. Yet the draft does not provide for any protection for media workers or their sources in this regard. It even allows the transfer of unfiltered data sets to other intelligence services, whose use of the data may not comply with the rule of law.
In other areas, too, unclear guidelines, insufficiently monitored discretionary powers and hitherto unregulated powers to hack foreign servers and devices create possibilities for monitoring the confidential communications of media workers and accessing confidential files that have been saved for investigative purposes.
Problematic definition of journalism
Another problematic aspect is that the proposed law ultimately seeks to leave the decision of who counts as a journalist and is therefore entitled to special protection against surveillance largely in the hands of the BND. The basis for the decision is to be set out in detail in a secret manual (Dienstvorschrift); it is precisely this practice of regulating central requirements in secret, which the Federal Constitutional Court had explicitly criticized in its ruling.
An overly narrow interpretation of the term "journalism" would also have potentially fatal consequences for citizen journalists in countries that are at war, or for oppositional media workers in dictatorships, which deny them media status. Such politically motivated repression in other countries must not lead to a further weakening of the basic rights of those affected by leaving them exposed to surveillance by German authorities. In a worst-case scenario, this could lead to information gathered through BND surveillance being passed on to intelligence agencies in repressive states that could use this information to persecute journalists there.
RSF therefore makes the case that, also in the BND Act, the special protection against surveillance afforded to journalists under constitutional law should not be contingent on content-related criteria or affiliation with a recognized media outlet, but should be based on clear criteria for the process of creating trustworthy journalistic content. For example, the Journalism Trust Initiative (JTI) Standard, initiated by RSF, could serve as an indication for such criteria.
Constitutional Court ruling criticizes insufficient protection of press freedom
In May 2020, the BND Act, which came into force in 2017, was declared unconstitutional by Germany's Federal Constitutional Court, among other things due to insufficient provisions for the protection of freedom of the press. RSF was a complainant in the proceedings. RSF Germany has sharply criticized the first draft for a revised version of the BND Act produced by the Federal Chancellery. Although it places a few additional restrictions on the BND's surveillance activities, the Federal Chancellery's draft fails to meet the Constitutional Court's requirement that a democratic relationship be established between justified security interests and freedom of the press.
RSF calls for the amended version of the BND Act to give special priority to the protection of confidential communications and impose clear restrictions concerning measures that encroach on journalists' confidentiality rights. In addition to clearly defining the individual cases in which intrusions into confidential relationships can be deemed justifiable, the amended law must above all provide for more effective oversight mechanisms.
Lacking protection and oversight
Although the Federal Chancellery's draft recognizes the fundamental need for restrictions on the surveillance of persons working in professions that enjoy special confidentiality protection, the draft provides for overly broad situations, in which this protection may be waived. Moreover, the provisions regarding the hacking of foreign servers and networks, an activity in which the BND has engaged for years without a legal basis, do not exempt these professional groups or their contacts from this type of surveillance. For these reasons, effective and independent oversight of all procedures – from the assignment of special confidentiality protection to the proper handling of collected data – is all the more important.
"The draft law still testifies to the desire for the BND's mass surveillance of global Internet traffic to continue as far as possible. If enacted into law in its current version, the BND Act would leave the intelligence service with unchanged extensive powers to gather information on the sources and research of media workers. This carries unacceptable risks for journalists' sources all over the world," said the Executive Director of RSF Germany, Christian Mihr. "The BND Act must finally establish clear and transparent provisions and effective oversight mechanisms to protect press freedom. Any surveillance of the confidential communications of journalists should only be permitted as a last resort in narrowly defined individual cases."
Germany ranks 11th out of 180 countries in RSF’s 2020 World Press Freedom Index.