RSF files lawsuits against spying on journalists by German intelligence agencies

RSF Germany has brought the lawsuits jointly with Whistleblower-Netzwerk, a Berlin-based NGO, and German investigative journalists.

In its reform of the Law on the Protection of the Constitution in June, the German federal parliament for the first time gave all the intelligence agencies permission to use spyware to hack into smartphones and computers. They are now also allowed to record encrypted messages and calls via Signal, Telegram, WhatsApp and the like.

Journalists can easily become the targets of such surveillance procedures because their work requires them to be in touch with people in whom the intelligence services are interested, including routine contacts, informants, activists and others.

RSF and its fellow plaintiffs are convinced that this possibility poses a very real threat to the confidentiality of journalists' sources and therefore poses a very real threat to investigative reporting by the media in Germany.

They have asked various administrative courts to issue injunctions banning the Federal Intelligence Service (BND), the Federal Office for the Protection of the Constitution (and its regional branches) and the Military Counterintelligence Service (MAD) from using digital communications surveillance tools against persons, including journalists, who are not suspects or not directly implicated in investigations, and without their knowledge.

“This law also poses a threat to whistleblowers in the digital domain,” RSF Germany director Christian Mihr said. “It can also have major consequences for investigative reporters. Yet again, we are taking legal action against a law regarded as unconstitutional by experts, a law that has been adopted in haste without taking account of the consequences it can have for journalism and press freedom in Germany.”

Lawyers consulted by the federal parliament’s interior committee warned last May against the high risk of abuses in connection with the new hacking powers being given to the intelligence agencies. With this law, “we are rushing headlong towards unconstitutionality,” the Göttingen-based legal expert Benjamin Rusteberg said. RSF Germany repeatedly warned against the erosion of provisions designed to protect journalistic activity.

Journalists targeted by state surveillance

With the Härting Rechtsanwälte law firm’s help, RSF Germany has filed a request for an injunction with the federal administrative court in Leipzig. Two investigative journalists – Martin Kaul of the WDR Investigativ network, who is also a member of RSF Germany’s board, and Die Zeit’s Christian Fuchs – have filed a similar request with the administrative court in Cologne. Christina Schmidt, a multiple award-winning investigative journalist who also works for Die Zeit, has initiated a legal action against the permission given to the intelligence agencies to use spyware.

Specialists in the most sensitive stories, Kaul, Fuchs and Schmidt have been covering far-right networks for years and are often in contact with people who are spied on by the BND, MAD and other intelligence services. They fear that this new law allows those in charge of security not only to have better knowledge of their potential targets but also to learn more about journalists’ communications with their sources, about editorial processes and about what media outlets are planning to publish. Another serious criticism is the fact that those who have been spied on never or only vary rarely discover this.

In its communications with foreign investigative reporters, RSF Germany itself runs a high risk of being spied on by Germany’s BND. This possibility is all the more alarming because, according to several German media outlets, the BND is using the Pegasus spyware.

RSF Germany has also filed an application to the European Court of Human Rights alleging that Germany lacks effective legal recourse against digital surveillance by its intelligence agencies. The various requests for injunctions also raise the issue of the so-called G10 law regulating the right to the confidentiality of communications, and whether it can serve as the basis for regulating the right to the confidentiality and integrity of information systems.

France’s July 2021 law on intelligence gathering and preventing terrorism also provides the security services with new surveillance resources. In particular, it allows them to use algorithmic techniques, which were included only experimentally in the equivalent 2015 law. This technology enables them to automatically process masses of Internet connection and browsing data with the help of access providers. As in Germany, there are serious concerns about the possibility of journalists and their sources being spied on, either directly or contingently, as the envisaged safeguards are inadequate.

In both Germany and France, the utmost vigilance is therefore needed to prevent widespread digital surveillances of journalists and media workers.

Germany is ranked 13th out of 180 countries in RSF's 2021 World Press Freedom Index while France is ranked 34th.