Constitutional Court hears case against controversial snooping law

Germany’s Federal Constitutional Court (Bundesverfassungsgericht) will hold an oral hearing on 14 and 15 January on whether global internet surveillance by Germany’s foreign intelligence agency, the BND, is constitutional. The hearing comes after Reporters Without Borders (RSF) and the Society for Civil Rights (GFF) together with an alliance of four media organisations lodged a constitutional complaint before the court challenging the BND’s surveillance powers.

“The law allows the foreign intelligence agency to spy on journalists abroad almost without restrictions and to share the information with other intelligence agencies. This is an unacceptable restriction of press freedom,“ said Christian Mihr, Executive Director of RSF Germany. “There is a great deal of uncertainty among media professionals because you never know if you are being monitored. Besides, we don't know what is exchanged between the intelligence agencies.”

The complainants fear that informants no longer want to approach journalists with sensitive issues for fear of permanent surveillance. Furthermore, the BND could also circumvent German editorial secrecy by monitoring the foreign partner media of German media outlets during major international investigations such as the Panama Papers.

Landmark ruling could strengthen international human rights protection

The constitutional complaint against the BND law was filed, among others, by the winner of the Alternative Nobel Prize, Khadija Ismayilova (Azerbaijan). Prof. Dr. Matthias Bäcker, a renowned constitutional lawyer from Mainz, is the legal representative. The lawsuit is coordinated by the Society for Civil Liberties (GFF) in collaboration with RSF Germany, German Journalists' Association (DJV), German Journalists' Union (DJU), the Network for Reporting on Eastern Europe (n-ost) and Netzwerk Recherche.

The group of complainants also includes Paul van Gageldonk (the Netherlands), Richard Norton-Taylor (the UK), Blaz Zgaga (Slovenia), Raúl Olmos (Mexico) and Goran Lefkov (Macedonia). They all work as investigative journalists in their own countries, and most of them focus on topics like corruption, tax fraud, organised crime and human rights abuses in their countries.

The anticipated landmark ruling by the constitutional court will be the first on the BND’s surveillance activities in over 20 years and could significantly strengthen international human rights protection with regard to the secrecy of telecommunications and freedom of the press.

Snowden revealed close relationship between NSA and BND

More than seven years after Edward Snowden exposed a global system of mass surveillance by intelligence agencies, the Federal Constitutional Court, the supreme constitutional court for Germany, will pronounce judgment on the legality of the country’s involvement in these activities. In the aftermath of the National Security Agency (NSA) spying scandal, a Bundestag investigation committee brought to light the fact that the BND served as a vehicle for the NSA, which prompted the coalition government at the time to pass a new BND law.

But instead of placing clear restrictions on the activities of the foreign intelligence service, the German government legalised what amounts to almost blanket foreign surveillance – despite massive protests from civil society. 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), among others, 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. The German government, however, ignored these critics and passed the law without any changes.

Are fundamental rights applicable to non-Germans?

The official agenda of the oral hearing - published by the Court - suggests that the Federal Government will have to answer a number of complex questions, including details on how BND Internet surveillance works in practice. The mere fact that the court will ask such questions shows a severe lack of clarity in this matter - and highlights the secretive character of the “BND law”. The judges of the First Senate of the Court also announced that they plan to discuss the inadequate control mechanisms of surveillance of foreigners.

“Digitalisation enabled intelligence agencies to carry out numerous new forms of surveillance, while fundamental rights have been completely disregarded,” said Ulf Buermeyer, chairman of the Gesellschaft für Freiheitsrechte, which is part of the coalition of NGOs. “It seems that secrecy of telecommunications no longer applies to the BND. We urgently need protections against intelligence agencies that monitor global Internet traffic without any concrete suspicion or court order”.

The case also raises a set of fundamental questions of whether German authorities abroad must respect the basic rights laid out in the German constitution. The German government has denied such a view. The ruling is expected a few months after the oral hearing.

More information including the complete constitutional complaint (in German) can be found at: https://notrustnonews.org/