After the Snowden revelations, the coalition government of Socialdemocrats and Christian parties had regulated the powers of the foreign secret service by law. Despite a ruling from the Constitutional Court, its surveillance operations continue to grow out of control.
The Federal Constitutional Court in Germany must once again deal with the powers of the Federal Intelligence Service (BND). On Thursday, the Society for Freedom Rights (GFF) and Reporters Without Borders filed a constitutional complaint against the BND law. Together with journalists and human rights activists from various countries, the associations are defending themselves against worldwide surveillance by the German secret service responsible for foreign affairs.
The then ruling government of Socialdemocrats and Christian parties had reformed the Intelligence Services Act in 2016 with the aim of better protecting Germans from surveillance abroad. The reason were the revelations of the whistleblower Edward Snowden, according to which the BND also exceeded its powers. For example, the service used keywords to monitor the internet at larger internet nodes without cause. Even EU and NATO institutions were spied on.
The GFF and Reporters Without Borders had already filed a complaint against the – in their view insufficient – reform at the time and won an important victory for civil rights in 2020. The Constitutional Court declared large parts of the BND’s foreign surveillance to be contrary to fundamental rights and demanded improvements.
But the BND law, which was reformed again in 2021, does not meet the requirements of Karlsruhe, the two associations complain. The modified or newly created powers “blatantly” violate the secrecy of telecommunications, the right to informational self-determination and the so-called IT fundamental right, according to the GFF.
“Under the guise of strategic information gathering abroad, the BND is now allowed, for example, to use in-depth surveillance tools tailored to individuals, such as the state Trojan [remote forensic spyware], without any significant restrictions,” criticises Bijan Moini. He is the procedural coordinator at GFF. The BND law thus creates the lowest intervention threshold for the use of spy software in German law, Moini says.
Actually, the BND is prohibited from spying within Germany, but in 2021 this possibility was even written into the law. Thus, the service is now allowed to become active within Germany, if this involves monitoring not two people, but technical communication between mobile phones and servers. In the text of the law, this is called “machine-to-machine communication”.
This refers to apps for health services, ticket bookings, online banking or navigation. They generate traffic data that allow conclusions to be drawn about the physical and mental characteristics, financial circumstances or social behaviour of the persons concerned. Snowden once warned impressively of the growing hunger of secret services for this metadata. For example, the BND could gain insight into a person’s contacts, networks and activities, fears Helene Hahn, a consultant at Reporters Without Borders.
The BND law also puts foreigners with permanent residence in Germany in a much worse position than Germans, the complainants criticise. Even EU citizens are not safe from surveillance by the BND, says Bijan Moni of the GFF. Because this could constitute a violation of the prohibition of discrimination under EU law, the Constitutional Court is also to submit parts of the complaint to the European Court of Justice for examination.
Journalists from the EU and non-EU countries are particularly affected by the powers of the BND, the associations say. The German secret service could, for example, use traffic data to obtain information on when and with whom journalists communicate. This would endanger the sources of reporting or deter them from contacting the media professionals at all.
This is also the fear of the Italian investigative journalist Sara Creta, who is known for her reports on human rights violations against refugees. “The information I collect is sensitive, my sources are in authoritarian countries,” says Creta when asked by “nd”. Most of her journalistic communication takes place online, which is why she calls the powers of the BND “surveillance without borders”.
The journalist and activist Kerem Schamberger is one of the 20 plaintiffs from non-EU countries, the EU and Germany. He criticises the unequal treatment in the BND law: “If I travel with a Kurdish friend without German citizenship to a demo abroad, the BND is allowed to monitor his communication during this time, but not mine,” Schamberger told “nd”. “And clearly, if it were up to me, the BND should not be allowed to monitor any of us.”
With the complaint, the individuals and organisations want to achieve that the BND law is changed again by the traffic light coalition of Social Democrats, Christian Democrats and Liberals – ideally before, but at the latest after, the ruling from the Court in Karlsruhe. But that can take time: constitutional complaints lie there for up to five years until a decision is reached.
Soon, another complaint by Reporters without Borders will be pending there: On Wednesday, the Federal Administrative Court in Leipzig dismissed a case brought by the association, which was also about governmental Trojans. Nowadays, many investigations in the security sector are carried out by investigative networks from different countries. If these were intercepted abroad by the BND, German journalists could also become the target of such measures, they feared. The court declared the lawsuit inadmissible because the association as such could not be affected. The plaintiffs are now also appealing to Karlsruhe.
Published in German in „nd“.
Image: BND Zentrale Berlin (Olaf KosinskyOlaf Kosinsky, CC BY-SA 3.0 DE).