Amended BND law: Even more mass surveillance instead of constitutionally compliant reform

Secret services are only compatible with the rule of law if they comply with fundamental rights limitations. After our first complaint against the BND law, the Federal Constitutional Court clarified in 2020 that the Basic Law binds German secret services not only within Germany, but worldwide. The BND is therefore only allowed to mass intercept and analyse the communications of foreigners abroad under certain conditions. Intelligence services have to observe even stricter limits when they monitor people at home. But the amended BND law creates far-reaching new surveillance powers without substantial hurdles - and thus violates fundamental rights dozens of times.

MASS SPYING ON CITIZENS, STATE TROJANS, UNEQUAL TREATMENT OF FOREIGNERS

One of the most problematic new provisions of the BND law: the BND is now also allowed to spy on German citizens in Germany. With the authority for total intelligence gathering of so-called machine-to-machine communication, large parts of the online activities of people in Germany can be processed and stored for up to six months. Only the individual communication of natural persons is exempt - all other digital uses, such as accessing websites, booking tickets or using online banking, may be tracked by the secret service. Surveillance is not only permitted in specific cases of suspicion, but without any reason and therefore on a massive scale.

In addition, the law introduces a practically unconditional authorisation to use state trojans on foreigners abroad. The amended BND law allows smartphones to be hacked for the purpose of an online search or source telecommunication surveillance without any significant hurdles. The legislator has thus created the lowest intervention threshold for the use of state trojans in German law to date.

Furthermore, foreigners with permanent residence in Germany are clearly worse off than Germans, because they can be monitored without restrictions as soon as they leave Germany for a short time - Germans, on the other hand, are comprehensively protected. The Federal Constitutional Court had wanted to keep both groups equally free from strategic surveillance by the BND.

Freedom of the press is particularly affected by the new BND law. The Federal Constitutional Court had actually demanded special protection for journalists' communications after the ruling we won. According to the new law, however, no protection measures are provided for so-called traffic data, i.e. information about when journalists communicate with whom. Moreover, journalists' communications with their sources are not comprehensively protected.

Many of the other modified or newly created powers also blatantly violate the secrecy of telecommunications, the right to informational self-determination and the IT fundamental right. Clearly unconstitutional are, for example, the far-reaching surveillance of EU citizens, which we would like to have examined by the European Court of Justice, as well as numerous provisions on the transmission of data by the BND to domestic and foreign agencies.

OUR GOAL: REDUCING THE SURVEILLANCE BURDEN AT HOME AND ABROAD

All in all, the BND law in its current version has the following characteristics: the requirements are too low, the means of surveillance are too undifferentiated and the circle of addressees is too large. In the process, the standards expressly formulated by the Federal Constitutional Court are disregarded and entirely new powers are created that violate the fundamental rights of those affected.

Moreover, this case also makes it clear that criticism by experts in legislative procedures must be taken more seriously. The BND law is a particularly striking example of how extensive well-founded criticism of the draft law was practically completely ignored. Among other things, Reporters Without Borders had demanded comprehensive protection of confidentiality relations between journalists and informants. A law that makes confidential communication with sources almost impossible undermines and threatens the freedom of the press - and thus a cornerstone of democracy.

With our constitutional complaint, filed together with Reporters Without Borders, we want to achieve that the serious deficiencies of the BND law are corrected and the powers of the BND are limited to a constitutional level.

LEGISLATOR MUST IMPLEMENT DEMANDS OF THE FEDERAL CONSTITUTIONAL COURT

If necessary, we will go to court twice against the same law. We had hoped that the legislator would implement the requirements of the 2020 ruling without introducing new constitutional violations. However, since the result of the reform is an unconstitutional law, we are persisting and, together with Reporters Without Borders, are once again taking the case to the Federal Constitutional Court. The constitutional complaint was again written by Prof. Dr. Matthias Bäcker.

Again and again, lawsuits are required to put the German secret services in their place. This is also shown by our successful constitutional complaint against the Bavarian Constitutional Protection Act and our 2022 constitutional complaint against the G10 Act.