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Freedom in the digital age
Art. 10

Amended BND Act: Even more mass surveillance instead of reform conforming to the constitution

Together with Reporters Without Borders, we are taking the amended BND Act to the European Court of Human Rights. After a groundbreaking ruling by the Federal Constitutional Court which we obtained in December 2020, the amended version of the law once again contains unconstitutional provisions.

In 2020, we obtained a high-profile ruling by the Federal Constitutional Court, which declared large parts of the foreign surveillance by the Federal Intelligence Service (BND) to be unconstitutional. As a result, the BND Act was amended by the legislature and came into force on 1 January 2022. However, instead of being in line with the constitution, the BND Act once again violates several fundamental rights of individuals abroad - and even in Germany. The BND is now allowed to analyse certain internet usage data of German residents on a massive scale, state trojans can be used abroad practically without any conditions, and foreigners living in Germany are treated worse than Germans for no good reason. Together with Reporters Without Borders, we therefore filed another constitutional complaint in 2023 - but the Federal Constitutional Court did not accept our case for a ruling. Therefore we are now taking our case to the European Court of Human Rights in Strasbourg. German secret services must stand firmly on the ground of the Basic Law - otherwise they will lose their right to exist.
Bijan Moini

Bijan Moini

Head of Legal and Case Coordinator

The Federal Constitutional Court did not want to rule on whether the Bundestag had adhered to the standards for the foreign intelligence service’s powers that the court itself had established. This is very regrettable – because the law contains more violations of fundamental rights than ever before. It involves serious intrusions into privacy, such as state-sponsored spyware. We cannot accept this. Fortunately, the European Convention on Human Rights provides a European system for the protection of fundamental rights – which is why we are now taking the case to Strasbourg for the first time.
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Secret services are only compatible with the rule of law if they comply with fundamental rights limitations. After our first complaint against the BND Act, the Federal Constitutional Court clarified in 2020 that the Basic Law binds German secret services not only within Germany, but worldwide. The BND may therefore only mass intercept and analyse the communications of foreigners abroad under certain conditions. Intelligence services have to observe even stricter limits when they monitor people within Germany. But the amended BND Act creates far-reaching new surveillance powers without any substantial hurdles - and as a result 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 Act: the BND is now also allowed to spy on German citizens within Germany. With the authority to comprehensively collect intelligence on so-called machine-to-machine communication, large parts of the online activities of individuals in Germany can be processed and stored for up to six months. Only individual communication of natural persons is excluded - 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 completely without cause 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 Act 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 in a significantly worse position than Germans, as they can be monitored without restrictions as soon as they leave Germany for a short time period - 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 Act. The Federal Constitutional Court had actually demanded special protection for journalists' communications after the ruling we won. However, according to the new law, no protective 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 fundamental IT right. For example, the far-reaching surveillance of EU citizens, which we would like the European Court of Justice to review, as well as numerous provisions on data transmission by the BND to domestic and foreign agencies are clearly unconstitutional.

OUR GOAL: REDUCING THE BURDEN OF SURVEILLANCE IN GERMANY AND ABROAD

All in all, the BND Act in its current version has the following characteristics: the requirements are too low, the means of surveillance are too undifferentiated and the target group is too large. This disregards the standards expressly formulated by the Federal Constitutional Court and creates entirely new powers 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 Act is a particularly striking example of extensive, well-founded criticism of the draft law being practically completely ignored. Among other things, Reporters Without Borders had called for 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 second constitutional complaint, filed jointly with Reporters Without Borders in January 2023, we wanted to ensure that the serious shortcomings of the reformed BND Act were rectified and that the BND's powers were limited to a constitutional level. However, the Federal Constitutional Court did not accept our constitutional complaint for decision without providing any reasons. We are therefore now lodging a complaint against Germany with the European Court of Human Rights (ECtHR) in Strasbourg. The aim of the complaint is for the ECtHR to declare that the current version of the BND Act violates the right to privacy (Art. 8 ECHR), which also includes the secrecy of telecommunications, and the freedom of the press (Art. 10 ECHR).

LEGISLATOR MUST IMPLEMENT DEMANDS OF THE FEDERAL CONSTITUTIONAL COURT

If necessary, we will file several lawsuits 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 yet another unconstitutional law and given that the Federal Constitutional Court did not uphold our constitutional complaint, we are continuing our efforts and, together with Reporters Without Borders, are taking our case to the European Court of Human Rights for the first time.

Prof. Dr. Matthias Bäcker from Johannes Gutenberg University in Mainz, who already drafted both constitutional complaints against the BND Act, drafted the complaint to the ECtHR. The GFF and RSF are complaining as affected organizations themselves. Other complainants include human rights activists and journalists such as Meron Estefanos and Goran Lefkov.

Time and again, lawsuits are needed to rein in German secret services. This is also demonstrated by our successful constitutional complaint against the Bavarian Constitution Protection Act, our 2022 constitutional complaint against the G10 Act and our 2024 constitutional complaint against the Federal Constitution Protection Act.

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