BND law: German Bundestag ignores criticism of civil society and breaches constitution

Reporters Without Borders (RSF) is appalled by the adoption of the reform bill on the German foreign intelligence agency (BND) in the German Bundestag today. With the reform bill, the ruling coalition wants to allow surveillance of foreign journalists abroad by the BND and thus to legalize a severe breach of the fundamental rights to freedom of expression and freedom of press.

“This reform is a clear breach of the constitution”, said Christian Mihr, the executive director of RSF Germany. “Passing such a far-reaching bill without any attempts of making an amendment is a remarkable contempt not just for criticism from civil society, but also for fundamental rights like freedom of press. In the future, every repressive regime that wants to spy on foreign journalists on the basis of vague laws can refer to Germany as an example.”

Today the German Bundestag has passed the law without any noteworthy amendments. As a consequence, the BND has the explicit right to spy without restrictions on non-EU journalists, as long as this is deemed to serve Germany’s political interests.

The ruling coalition thus not only defies the unanimous criticism of media associations and human rights organizations, three UN Special Rapporteurs (http://t1p.de/gwdl), the OSCE Representative on Freedom of the Media (http://t1p.de/iut5) and the legal committee of the German Bundesrat (http://t1p.de/1ian), but also technical objections (http://t1p.de/ut2d; http://t1p.de/4xx5).

RSF has led an international alliance of NGOs, organizations and media outlets, urging for an amendment to protect reporters from spying. Among them are Amnesty International, the European Federation of Journalists (EFJ), the European Centre for Press and Media Freedom (ECPMF), German Federation of Journalists (DJV), German Union of Journalists (dju), and Courage Foundation. RSF collected thousands of signatures (https://www.reporter-ohne-grenzen.de/mitmachen/petition-bnd-en/).

Together with two similar petitions from Amnesty International (http://t1p.de/tfji) and the online activist Katharina Nocun, more than 20.000 signatures against the reform bill have been collected. They were delivered to the German Bundestag on Thursday after a demonstration in front of the Brandenburg Gate (http://t1p.de/3ffv). Initially, RSF intended to present the petition to leaders of the German governing parties SPD and CDU/CSU. However, despite week-long efforts, the plan to deliver the petition to Volker Kauder (CDU/CSU) and Thomas Oppermann (SPD) fell through.

DIFFERENT STATUS ACCORDING TO NATIONALITY

The bill does not permit spying on German citizens and permits only limited spying on the citizens of other EU countries. But it permits unrestricted spying on the citizens of non-EU countries if it was decided that the result would help to protect Germany.

Exemptions protecting journalists, such as those in paragraph 3 of Germany’s so-called G10 law – a law specifying the restrictions that can be placed on the constitutional right to the confidentiality of email and telecommunications – are completely absent from the law. The bill allows, for example, the BND to place the New York Times under surveillance if the newspaper received confidential information that the German authorities regarded as sensitive.

CRITICISM FROM EXPERTS IN GERMANY AND ABROAD

UN Special Rapporteurs David Kaye (Freedom of Opinion and Expression), Michel Forst (Situation of Human Rights Defenders) and Mónica Pinto (Independence of Judges and Lawyers) expressed “concern that the draft law would pose a threat to the exercise of the right to freedom of expression” in a letter to Germany’s ambassador to the UN in Geneva (http://t1p.de/zp5d). The issues raised by the three specialists include the creation of “overbroad conditions for the collection and processing of data” and “insufficient safeguards for the rights of foreign journalists and lawyers.”

The Rapporteurs emphasized the fact that the draft law offers weaker protections against BND surveillance for non-German citizens than for Germans, stressing that the right of freedom of expression - protected under the International Covenant on Civil and Political Rights - applied regardless of nationality and frontiers. They added that limits to the right to freedom of expression must themselves be non-discriminatory.

The harsh criticism of the UN-experts to a law in Germany shows how the debate over the consequences of the NSA scandal is perceived internationally. If German politicians will in future demand strict rule of law of repressive regimes when it comes to surveillance, they shouldn’t get more than a weary smile after this reform.

Germany is ranked 16th out of 180 countries in RSF’s 2016 World Press Freedom Index. RSF Germany has decided to file a complaint against the BND. RSF already lodged a complaint with the Federal Administrative Court in Leipzig on 30 June 2015, accusing the BND of spying on its email correspondence with its foreign partners and journalists, thereby endangering part of its work. The case is to be heard on 14 December 2016.

MORE INFORMATION:

- Online petition und background information about the reform bill: https://www.reporter-ohne-grenzen.de/mitmachen/petition-bnd-en/