A second constitutional complaint against Germany's Federal Intelligence Service Act
Reporters Without Borders (RSF) and the Society for Civil Rights (GFF) have filed a second constitutional complaint in Germany against the Federal Intelligence Service Act (BND Act). Despite a revision of the law in spring 2021 both organisations hold that journalists are inadequately protected from surveillance by the BND, especially in their confidential communications with sources.
"Almost ten years have passed since the first revelations that exposed the scale of worldwide surveillance by secret services. Little has changed in surveillance practices since then. We are still campaigning for a minimum of protection for journalists against unlawful wiretapping – also by German authorities like the BND. The mass surveillance and unrestricted expansion of the powers of the intelligence services must be stopped. So far, the German lawmakers have failed to do this.
In May 2020, the German Federal Constitutional Court (BVerG) in Karlsruhe partially upheld a constitutional complaint lodged by Reporters Without Borders and several other human rights and journalist organisations. Germany's highest court ruled that the BND is bound to respect fundamental rights such as freedom of expression and telecommunications secrecy not just within Germany, but also abroad. However, in the ensuing revision of the BND law, the need for the communications of media workers to receive special protection was not taken into account.
Journalists are still not adequately protected from surveillance by the BND. This applies above all to their confidential communications with sources. In addition, the BND is still not clearly prohibited from processing the results of journalists’ research. Under the provisions of the current BND law, the monitoring of journalists' communications with a source is not allowed, but the monitoring of communications about that source is allowed. This means that the contents of emails, for example, are not to be recorded, but traffic data – which provides information about who communicates with whom, when, how, and for how long – is not protected.
In addition, the revised law offers different degrees of protection from surveillance depending on an individual's nationality and place of residence. Non-EU citizens with permanent residence in Germany are only protected from surveillance as long as they remain in Germany. If a media worker living in exile leaves Germany for research purposes, even for a short time, they become potential surveillance targets for the BND. The BND is allowed to monitor non-EU citizens residing abroad, for example in Turkey or the US, insofar as this is deemed necessary for the provision of political information to the Federal Government, or for the early detection of threats from abroad. Consequently, these are the persons least protected by the law.
This means that media workers who are already particularly exposed to persecution, intimidation and threats in authoritarian states for being critical of the government in their work are targeted by German authorities as well. In the opinion of Reporters Without Borders, it is completely incomprehensible that the German government denies foreign journalists protection from surveillance. Moreover, the problem will become even more serious in the future because the BND is allowed to pass on its findings to foreign intelligence services.
Strictly speaking, the Federal Intelligence Service is not allowed to intercept communications from German citizens. However, the BND Act gives the authority a new power, namely "machine-to-machine communication". This monitoring of traffic data between devices and services in processes such as online banking, hotel bookings or navigation is not subject to any prerequisites, which means that this data can also be collected from Germans, and provide insights into numerous areas of their lives and social behaviour. In this way, EU institutions and EU citizens can be monitored by the BND almost without restrictions. And for the purpose of the early detection of threats, this surveillance can even be indefinite.
Among the 20 complainants are journalists and human rights activists from non-EU countries, the EU and Germany, including Meron Estefanos (Sweden), Peter Verlinden (Belgium), Sara Creta (Italy) and Eva Schulz (Germany). RSF and GFF are also filing the constitutional complaint on their own behalf as affected organisations.
Germany ranks 16th out of 180 countries in RSF's World Press Freedom Index.