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Freedom in the digital age
Art. 10

GFF and Amnesty challenge strategic mass surveillance

No unlimited surveillance of telecommunication by the Federal Intelligence Service:
GFF brings a constitutional challenge against the “G 10” Act.

Ulf Buermeyer


"The law permits too much and provides too little control. This encroaches on citizens' fundamental rights on two levels at once".

The GFF is challenging the so-called “strategic” surveillance of international telecommunication to and from Germany. We oppose the fact that the Federal Intelligence Service (Bundesnachrichtendienst, BND) will be allowed to spy on telecommunication by means of mass surveillance without concrete individual probable cause. Moreover, we are convinced that discrimination against individuals without a German passport is incompatible with the German Basic Law.

Our lawsuit therefore has two prongs: The limits on the Federal Intelligence Service’s spying powers are not sufficiently strict, and the Act discriminates against non-Germans.

The GFF partners with Amnesty International

The GFF is taking direct action before the Federal Constitutional Court against certain passages of the law restricting the secrecy of correspondence, post and telecommunications, the so-called "G 10".

The plaintiffs are represented by Prof. Dr. Matthias Bäcker, one of the most experienced legal experts in Germany in the area of telecommunication surveillance. He represents both individuals working for Amnesty International as well as the German section of Amnesty International before the Federal Constitutional Court.

What is the Article 10 Act (G 10)?

The Act Restricting the Privacy of Correspondence, Posts and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses) permits different public bodies, such as the Federal Intelligence Service and the Federal Intelligence Service, to monitor, record and save the telecommunication of individuals. Its popular name “Article 10 Act” or “G 10” refers to Article 10 of the Basic Law, which protects the freedom of communication.

Article 10 of the Basic Law permits restrictions of the right to protected communication for particularly important reasons. This requires a statute — here, the Act Restricting the Privacy of Correspondence, Posts and Telecommunications, which entered into force in 1968.

The federal government already had to amend the “G 10” in 2001, after the Federal Constitutional Court had declared parts of the Act unconstitutional in 1999. Our case builds on this decision as well as the recent FCC decision on the Federal Office of Criminal Investigation Act (BKA-Gesetz).

We argue that the “G 10,” too, is subject to constitutional limits: restrictions of the right to privacy in telecommunications must be proportionate. In its current form, the “G 10” does not meet this standard.

Legal Background

Earlier cases against the actions of the Federal Intelligence Service were directed against individual surveillance measures. The GFF is bringing a direct challenge against the provisions of the underlying statute, the so-called “G 10,” in Karlsruhe. This is much easier than challenging individual measures in the Federal Administrative Court, which would require showing that the plaintiff was the object of concrete surveillance measures — which, of course, are secret. Earlier cases have failed to meet this standard.

The Federal Constitutional Court is much more generous on direct constitutional complaints against the G 10:

"For the admissibility of a constitutional complaint, it is […] enough if the citizen shows that it is rather likely that his fundamental rights are violated by the injunction, even if he cannot show in detail to be in fact the object of measures of strategic surveillance." (BVerfG, decision of September 20, 2016 – 2 BvE 5/15, para. 60).

Our plaintiffs argue that they regularly communicate abroad from Germany or from abroad to Germany, such that they are subjected to surveillance despite having done nothing wrong — except campaigning for human rights for Amnesty International. This is why we consider the relevant provisions of the G 10 Act to be unconstitutional.

Chances of Success and Consequences

A positive decision will force the German government to respect minimum human rights standards in the work of its Foreign Intelligence Service.

Our international partner organizations also have high expectations for the outcome of our constitutional complaint, as a positive decision from Karlsruhe would help advance their own work:

First, in the wake of the Snowden revelations, we expect the Federal Constitutional Court to declare new standards for the surveillance of individuals who are under no suspicion of having engaged in or planning criminal acts. This will help challenge similar surveillance measures of foreign secret service agencies. Secondly, discrimination against non-citizens is also a problem with other countries’ secret services, such as the NSA.

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