No Unlimited Surveillance of Telecommunication by the Federal Intelligence Service:
GFF brings a constitutional challenge against the “G 10”
GFF brings a facial challenge against 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 this kind of telecommunication by means of mass surveillance without concrete individual probable cause. Moreover, we are convinced that it implies discrimination against individuals without a German passport which is incompatible with the German Basic Law.
Our suit therefore has two prongs: The limits on the Federal Intelligence Service’s spying powers are insufficiently strict, and the Act discriminates against non-Germans.
GFF Partners with Amnesty International
GFF is bringing suit in the Federal Constitutional Court against specific provisions of the Act Restricting the Privacy of Correspondence, Posts and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), 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.
Legal Background
Earlier cases against the actions of the Federal Intelligence Service were directed against individual surveillance measures. GFF is bringing a direct, facial 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).
This is what our plaintiffs argue: 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 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:
Firstly, 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.
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 agencies, such as the Federal Intelligence Service and the Federal Office for the Protection of the Constitution, 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 had to amend the “G 10” already 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.
Our brief will be published here shortly (in German).
Image source: “Obtrusive wiretap” by Alper Çuğun on flickr.com (CC BY 2.0) (cropped)