Justice
What is allowed in counterterrorism? Constitutional Court examines
On the agenda for the hearing in Karlsruhe are, among other things, questions about data collection and processing as well as the BKA’s deletion practice. photo
© Uli Deck/dpa
It’s about counterterrorism, data collection and secret surveillance. The Federal Constitutional Court is now examining whether fundamental rights are being violated. Not for the first time.
When it comes to countering terrorism, it has Federal Criminal Police Office (BKA) in cooperation with the police have extensive options. The Federal Constitutional Court must now clarify to what extent these powers violate the fundamental rights of possibly innocent citizens.
On the agenda for the hearing in Karlsruhe are, among other things, questions about data collection and processing and, last but not least, the BKA’s deletion practice. It also involves the secret surveillance of a suspect’s contacts. A judgment is only expected in a few months. (Ref. 1 BvR 1160/19)
Plaintiff: Doors open when collecting data
The Society for Freedom Rights (GFF), a non-profit association, has filed a constitutional complaint against the BKA law, which was amended in 2017. The options given to investigative authorities go too far for her. This means that people who have only had contact with a suspicious person could become the target of surveillance measures. “This also affects two of the complainants of the constitutional complaint who are in contact with suspects through their professional work as lawyers.”
The GFF also complains that sensitive personal data could be stored extensively because of vague clues or mere assumptions and used without any further objective or time limits. “This allows comprehensive personality profiles to be created and stored permanently for people who have never committed any wrongdoing,” the statement says.
The plaintiffs are demanding specific constitutional standards for the collection and storage of data by the BKA. In this respect, the constitutional complaint breaks new ground. The complaint is also directed against the planned merger of police databases. “We hope that the court’s decision will, on the one hand, provide more detailed definitions of these requirements, but above all that they will be defined more narrowly – and that people will no longer end up in the databases for a long time if there was no sufficient reason for this,” explained Bijan Moini from the GGF.
The Senate has previously objected to parts of the law
It is not the first time that Germany’s highest court has dealt with the issue. In 2016, it imposed new barriers on the security authorities in the fight against terrorism and declared some of the BKA’s extensive powers to counter terrorism unconstitutional. The First Senate found “disproportionate interference in a number of individual provisions”. (Ref. 1 BvR 966/09, 1 BvR 1140/09)
In order to prevent terrorist attacks, the BKA has been allowed, among other things, to bug apartments and spy on them with cameras since 2009. The state is also allowed to use Trojans, i.e. specially developed software that skims data from a suspect’s computer hard drive. According to the ruling at the time, all of this is in principle compatible with fundamental rights. This recognizes the importance of the fight against terrorism for democracy and fundamental rights.
However, the court assessed the specific design of the powers by the legislature as inadequate in various respects. Above all, the core area of private life is sometimes not sufficiently protected. The ruling sets out particularly high requirements for the surveillance of apartments and online searches. The Senate also set clear conditions for data exchange with other authorities at home and abroad.
The BKA law therefore had to be improved. The new version has been in force since May 2018. The GFF is concerned with a “gap in constitutional law that has not yet been illuminated,” as it explained when presenting the constitutional complaint. According to the information, the plaintiffs, in addition to the two defense lawyers, are two football fans who ended up in police databases and a communications scientist and activist.