Reporters Without Borders: constitutional complaint lodged against the BND law

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In the complaint, international journalists seek to defend themselves against the powers granted to the German foreign intelligence agency, the BND, in the area of surveillance. The complainants are for the most part investigative journalists. Among these journalists is the winner of the Right Livelihood Award, Khadija Ismayilova from Azerbaijan, and the Mexican investigative journalist Raúl Olmos, who was a member of the international team of reporters that evaluated the Paradise Papers. The international organisation Reporters Without Borders, which is based in Paris, is also one of the complainants asserting before the German Federal Constitutional Court in Karlsruhe that the right to freedom of the press and freedom of communication are being violated.

"The law allows the foreign intelligence agency to spy on journalists abroad almost without restrictions and to share the information with other secret services. This is an unacceptable restriction of press freedom, which is why we are supporting the affected parties in their court action," said the executive director of RSF Germany Christian Mihr. "Projects like the Paradise Papers show that investigative journalism is increasingly the result of international cooperation. When the BND spies on foreign journalists it also undermines the confidentiality of sources in Germany."

The BND law was passed by the German Bundestag in October 2016 and came into effect at the start of 2017 (http://t1p.de/yecw). The ruling coalition in Germany had decided to make fundamental changes to the existing law after highly questionable BND practices came to light in the wake of the NSA scandal. Regarding its activities in the area of so-called strategic telecommunications surveillance in particular, the BND was clearly acting without a 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 in whom the BND takes an interest. Numerous cases of the intelligence agency targeting journalists have 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 who worked for renowned media, including the BBC, Reuters and the New York Times, with its surveillance (http://t1p.de/el7d).

Instead of restricting the BND's activities, the German government legalised the practices in a new BND law. The law offers different degrees of protection against surveillance depending on a person's nationality: the foreign intelligence service 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 like those set out in the related Article 10 Law or in the Code of Criminal Procedure are entirely lacking.

The problems are compounded by the explicit authority granted to the BND to share the information with other intelligence services. This legalises a dangerous "exchange" process in which the BND could for example monitor the communications of the Washington Post and pass on the information to the NSA, and "in return" the latter taps the phones of German media. With their constitutional complaint the journalists are seeking to defend themselves against this. The complaint is the only remaining possibility to have the law overturned after the German government and the German Bundestag ignored massive criticism. Among others, three UN Special Rapporteurs had criticised Germany pointing out that the rules were incompatible with human rights standards (http://t1p.de/gwdl).

COMPLAINANTS INVESTIGATING CORRUPTION AND HUMAN RIGHTS ABUSES

The group of complainants includes the journalists Khadija Ismayilova (Azerbaijan), Paul van Gageldonk (the Netherlands), Richard Norton-Taylor (the UK), Blaz Zgaga (Slovenia), Raúl Olmos (Mexico) and Goran Lefkov (Macedonia). They all work as investigative journalists in their own countries, and most of them focus on topics like corruption, tax fraud, organised crime and human rights abuses in their countries. These very same topics are also the subject of the BND's "investigative mission". Yet conversations between colleagues or with sources are not protected under the BND law and can therefore be intercepted. The journalists' mission of monitoring the activities of the state is rendered ineffective if these states are listening in on their conversations while they do their research. In addition, sources are deterred from contacting journalists with sensitive information. Other complainants are the German human rights lawyer Michael Mörth, who has lived and worked in Guatemala for the last 20 years, and the international organisation Reporters Sans Frontières. Based in Paris, Reporters Sans Frontières communicates extensively with journalists all over the world, and this communication also isn't protected by the law.

The goal of the complaint is to establish that the BND law is unconstitutional. The German government clearly regards the basic rights of press freedom and freedom of communication as exclusive German rights that it does not need to observe abroad. This, however, disregards the fact that these freedoms are protected as human rights, and that in international agreements like the International Covenant on Civil and Political Rights Germany has undertaken to respect them. The Federal Constitutional Court could pass a judgment setting out instructions for amending the BND law to bring it into conformity with the Constitution, for example by ensuring that it also offers journalists and other persons bound to professional secrecy effective protection.

Reporters Without Borders is part of an alliance that has worked for more than a year on the constitutional complaint project. The other partners in the alliance are the German Journalists Association (Deutscher Journalisten-Verband), the German Journalists Union (Deutsche Journalistinnen- und Journalisten- Union), Netzwerk Recherche, the journalist network n-ost, and the Gesellschaft für Freiheitsrechte.

In another lawsuit RSF Germany had already lodged a complaint in 2015 with Germany's Federal Administrative Court against unlawful BND surveillance practices. Part of this lawsuit is currently being processed by the European Court of Human rights (http://t1p.de/gia4), while in another part of it the Federal Administrative Court upheld RSF's complaint. Since then the BND is no longer allowed to store the call detail records of RSF Germany phone calls in its metadata analysis system "VerAS" (http://t1p.de/srbn).

Germany is currently ranked 16th among the 180 countries in the World Press Freedom Index.

MORE INFORMATION:

- FAQs on the BND Law: www.reporter-ohne-grenzen.de/themen/internetfreiheit/kritik-am-bnd-gesetz

- More information on the situation of journalists in Germany: www.rsf.org/en/germany