The Federal Constitutional Court will hold a hearing on the BND Act on January 14th and 15th, 2020. Plaintiffs expect a fundamental ruling defining the limits of intelligence gathering abroad. An alliance of six media organisations and the Gesellschaft für Freiheitsrechte (GFF) had filed a constitutional complaint against the BND Act, which gives broad surveillance powers to the Federal Intelligence Service (BND).
The expected landmark ruling will be the first on BND surveillance in more than 20 years. The Federal Constitutional Court is thus expressing its opinion on the subject for the first time in light of the massive increase in surveillance possibilities resulting from digitalisation.
GFF coordinates an alliance of internationally renowned journalists and media organisations. Together, they filed a constitutional complaint against the BND Act at the end of 2017. The plaintiffs fear, among other things, that the protection of sources will be undermined: If intelligence services can store and evaluate every communication, contact persons and whistleblowers all over the world successively lose confidence in the media – in the worst case they no longer turn to the press at all.
Oral arguments are rare at the Federal Constitutional Court and are typically only held in cases that the judges consider to be fundamentally important. In 2018, for example, only two cases were heard by the Constitutional Court – while the First Senate alone received more than 3,000 new constitutional complaints that year. “By dedicating two days to our case, the Constitutional Court is sending a clear message: Mass surveillance of online communication is highly controversial. We expect a landmark decision clearly limiting the BND’s powers,” says Ulf Buermeyer, chair of GFF. During the oral hearing in January 2020, the Federal Constitutional Court will hear the positions of the parties to the proceedings, ask questions and seek advice from experts, including IT experts. A few weeks later, the Federal Constitutional Court will decide on the issue.
Further information on the case is available at: https://freiheitsrechte.org/bnd-law/
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The Society for Civil Rights lodged a constitutional complaint against BND surveillance under the so-called G 10 at the end of 2016; this is a legal provision related to the surveillance of foreigners abroad currently under dispute.