BND Law on worldwide mass surveillance

Civil rights and liberties extend beyond borders: Germany’s Federal Constitutional Court declares that the Federal Intelligence Service’s practice of worldwide mass surveillance is unconstitutional

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On May 19, 2020, Germany’s Federal Constitutional Court (Bundesverfassungsgericht) issued a landmark decision, which strengthens international human rights and freedom of the press. Following a complaint filed by the Society for Civil Rights (Gesellschaft für Freiheitsrechte, GFF), together with an alliance of media organizations, the Court declared that the Federal Intelligence Service’s (BND) practice of monitoring worldwide internet traffic is unconstitutional. The BND’s surveillance practices violate the fundamental right to privacy of telecommunications, which is protected by the German Constitution (Basic Law). The relevant BND law does not set high enough hurdles for the targeted surveillance of individuals abroad, and lacks special protection for vulnerable groups such as journalists.

This case raised the question of whether or not German authorities – specifically the BND – are required to protect the basic fundamental rights of non-German citizens and individuals based abroad. In other words: Does the protection of the German constitution extend beyond German borders? The BND law in its current form is based on the assumption that the BND is not bound by the Basic Law when conducting surveillance of foreigners in other countries.

In its decision, the Federal Constitutional Court made clear that German governmental authorities — including the BND —are bound by the federal constitution at all times, in all locations, and regardless of whether the target is a German or a foreign national.

The court issued its decision four months after an oral hearing on the BND Act on January 14th and 15th, 2020.

The GFF along with its partner organizations had filed the lawsuit against the law that allows the BND to spy on foreign journalists. The complaint was filed before the Federal Constitutional Court in Karlsruhe. The complaint was supported by the Deutsche Journalistinnen- und Journalisten-Union (the German Journalists‘ Union/dju), the Deutsche Journalisten-Verband (DJV) (German Federation of Journalists), the journalists’ network n-ost, netzwerk recherche (nr) (research network) and Reporter ohne Grenzen (ROG) (Reporters without Borders). The plaintiffs were investigative journalists and human rights activists from various countries.

Legal problem: ‘Strategic’ surveillance without specific grounds for suspicion

The lawsuit was prompted by the new comprehensive surveillance powers granted to the BND by the amendment of 23 December 2016 to the BND law (Gesetz zur Ausland-Ausland-Fernmeldeaufklärung, in English: Act on Signals Intelligence Gathering in Germany of Foreigners Abroad). The amendment enables the BND to intercept communications without any specific grounds for doing so and to gather and process all content and traffic data. In other words: any e-mail, text message or telephone call sent or made by foreigners living abroad can be intercepted and used by the BND. The conditions under which this surveillance may be carried out are much too vague and too broad in scope and there is no effective means of monitoring these surveillance measures. Unlike surveillance of communications within Germany, which fall under the Code of Criminal Procedure (e.g. regarding the surveillance of suspects in the context of organised crime), the BND does not need to have any specific suspicion or a court order to engage in the strategic surveillance of foreigners abroad. Surveillance can be ordered merely for the purpose of obtaining “information of significance for foreign and security policy”.

Destroying trust between journalists and their sources

The new BND law destroys trust between journalists and their sources precisely in places where investigative journalism is particularly difficult. While it cannot be used for strategic surveillance of German or EU Institutions, it can target any other group of people. In principle, anyone communicating in a foreign country can be targeted, including highly sensitive groups such as lawyers or journalists and their sources.

The plaintiffs are therefore mainly investigative journalists from various countries, including many renowned journalists, such as the winner of the Alternative Nobel Prize Khadija Ismayilova (from Azerbaijan), Raúl Olmos (from Mexico), Blaž Zgaga (from Slovenia) and Richard Norton-Taylor (from Great Britain). The plaintiffs also include the German human rights lawyer Michael Mörth, who is working in Guatemala, and the French human rights organisation Reporters Sans Frontières.

It is highly probable that the nature of their work makes their communications “interesting” to the BND. Communication with colleagues and sources is affected by the law and information contained in it may be passed on by the BND to international intelligence services. This represents a direct threat for the plaintiffs and their informants and thus constitutes a risk for fundamental and human rights worldwide.