The Federal Administrative Court in Leipzig, the competent court of first and last instance in Germany, rejected on 14 December 2016 the lawsuit brought by RSF (http://ogy.de/fyew). The Federal Constitutional Court in Karlsruhe then refused to admit RSF's constitutional complaint against this decision on 26 April 2017 on the grounds that RSF had failed to adequately demonstrate that the organisation was directly affected by the BND's surveillance (http://ogy.de/62fl).
The Federal Administrative Court in Leipzig has already rejected similar lawsuits against the BND in the past on the grounds that the plaintiffs could not demonstrate that they were personally affected by the measures. However, it is practically impossible to provide proof of such surveillance because the secrecy of the BND's activities means that plaintiffs generally do not know whether they are or were under surveillance.
Another part of the original lawsuit is still pending with the Federal Administrative Court. It is directed against the metadata analysis system "VerAS", which the BND has been using since 2002 without any legal basis to gather call detail records on telephone calls involving a foreign element. The judges at the Leipzig court separated this part of the lawsuit from the rest last December and demanded clarification from the BND (http://t1p.de/qsk5). At the hearing, the BND's legal representatives explained that VerAS was just one of around 25 BND databases.
RSF had submitted the lawsuit against the BND to the Federal Administrative Court on 30 June 2015 (http://t1p.de/jco7). Lawyer Niko Härting has represented RSF in the case.
In the complaint lodged with the ECHR, RSF Germany asserts that its right to privacy of correspondence as well as its right to freedom of expression and information protected under Articles 8 and 10 of the European Convention on Human Rights are being violated. This is de facto disproportionate and groundless mass surveillance, since the intelligence agency's practically unlimited access and extremely broad search criteria lead to surveillance on a scale that far exceeds the alleged purpose of the measures.
GERMAN RULINGS ON BND SURVEILLANCE VIOLATE RIGHT TO EFFECTIVE REMEDY
In addition, RSF Germany asserts that its right to effective remedy (under Article 13 of the European Convention on Human Rights) has been violated because the vast majority of those affected are not informed even after the fact that their emails have been recorded and examined. Even the general public is informed about the surveillance measures – via the annual reports of the Parliamentary Control Panel, the German Bundestag’s intelligence oversight committee – only after the protocols documenting the deletion of emails that were ultimately categorised as "non-relevant for intelligence purposes" have been erased. Despite this, German courts only admit lawsuits and constitutional complaints against the surveillance if the plaintiff can provide real proof that they are directly affected by the measures – which is impossible under the aforementioned circumstances. (http://t1p.de/j7ew)
THE BND'S PRACTICES UNDERMINE CRITICISM OF SURVEILLANCE IN REPRESSIVE STATES
Considering all that is known about the scale of intelligence surveillance of signals between Germany and abroad as well as about the search criteria used by the BND, RSF Germany has to assume that a significant number of its emails were gathered and subjected to closer analysis – and that these surveillance practices are disproportionate and not covered by Germany's G10 Law (which regulates limitations on the constitutional confidentiality of mail and telecommunications). Many journalists from Germany as well as from authoritarian states like Uzbekistan, Azerbaijan and China contact RSF Germany with confidential information and communicate with the organisation about matters that are worthy of protection on a regular basis. If the BND examines such communications in the context of its mass surveillance, these journalists can no longer rely on their enquiries and matters remaining confidential.
With its excessive surveillance practices, the BND is not just undermining the protection of sources as a key element of press freedom in a democracy. It is also undermining the credibility of Germany's demands that authoritarian regimes respect media freedom, as well as robbing journalists in these countries of an advocate in their fight against surveillance and other forms of repression by their governments.
The reform of the BND law passed in the autumn of 2015 which regulates the BND's powers to gather signals intelligence from foreign targets located abroad (called the "Act for Foreign-Foreign Signals Intelligence Gathering") has no impact on the points of contention in the lawsuit. (For further information visit http://ogy.de/75j6)
Germany currently ranks 16th out of the 180 countries on the World Press Freedom Index
- Written complaint submitted to the ECHR by RSF Germany: http://t1p.de/j7ew /
- More about the state of press freedom in Germany: https://rsf.org/en/germany