monitoring
New constitutional complaint against reformed BND law
Technology is at the Schöningen branch of the Federal Intelligence Service (BND) in the Helmstedt district. photo
© Julian Stratenschulte/dpa
The purpose of the reform was to draw clear limits on mass surveillance without cause in the BND law. But the opposite is the case, critics complain – and go to court in Karlsruhe.
The worldwide surveillance activities of the Federal Intelligence Service (BND) are again a case for the Federal Constitutional Court. When reforming the BND law, the legislature in part openly ignored the guidelines from Karlsruhe, the Society for Freedom Rights (GFF) and Reporters Without Borders (RSF) announced on Thursday. In addition, new unconstitutional regulations had been included. The two organizations had therefore jointly filed another constitutional complaint.
Almost three years ago, they won an important judgment on the BND. In May 2020, the constitutional judges came to the conclusion that the so-called strategic telecommunications reconnaissance of the German foreign intelligence service was completely inadequately regulated. In doing so, the BND sifts through large data streams for information without any specific suspicion.
Powers should be limited
This mass surveillance without cause should remain possible in principle. However, the judges gave the politicians the task of regulating and limiting the BND’s powers much more precisely. The state must also protect fundamental rights abroad. This means that people around the world can invoke telecommunications secrecy and freedom of the press. German citizens were not allowed to be monitored in this way before.
The revised law was passed in March 2021 with the votes of the CDU/CSU and SPD. Process coordinator Bijan Moini of the GFF said it contained “more unconstitutional provisions than ever”. “Under the guise of strategic information gathering abroad, the BND can now use, for example, extensive surveillance tools tailored to individuals, such as the state trojan, without any significant restrictions.” In Germany, the BND is now allowed to record so-called machine-to-machine communication, i.e. between two technical devices. The metadata of health apps, online banking or navigation services were given as examples.
Lawsuit in Leipzig fails
Meanwhile, the Federal Administrative Court in Leipzig on Thursday dismissed a preventive lawsuit by Reporters Without Borders (RSF) as inadmissible. The court ruled that the communication could not be banned until the Federal Intelligence Service (BND) had monitored the communication.
The RSF had expressed concern that the BND could, among other things, monitor the association’s telephones and computers because it was in contact with people who were associated with extremist groups and organizations at home and abroad. According to the court, the BND had announced that it would make use of the option of so-called source telecommunications surveillance. Therefore, the organization sued preventively for injunctive relief.
According to the judges, however, the feared surveillance must be sufficiently concrete. This is not the case in this case. As long as there is only one fear, the use of preventive legal protection is excluded, it said. The court also ruled that the association first had to contact the BND to give it the opportunity to examine the case.
Reporters without borders 2021 on the criticism of the new BND law Bundestag on the decision of the reformed law in March 2021 BVerfG judgment of May 19, 2020 Current BND law General information on constitutional complaints