Against Surveillance by the Federal Intelligence Service (BND)

A new law allows the Bundesnachrichtendienst (BND) [the Federal Intelligence Service, Germany’s foreign intelligence agency] to spy on foreign journalists. This destroys trust between journalists and their sources precisely in places where investigative journalism is particularly difficult. Therefore, a number of prominent international journalists and human rights activists have filed a lawsuit against the BND law before the Federal Constitutional Court in Karlsruhe. They are supported by an alliance of journalists’ associations and NGOs.

These include the Gesellschaft für Freiheitsrechte (GFF) (Society for Civil Rights), the Deutsche Journalistinnen- und Journalisten-Union (the German Journalists‘ Union/dju), the Deutsche Journalisten-Verband (DJV) (German Federation of Journalists), the journalists’ network n-ost, netzwerk recherche (nr) (research network) and Reporter ohne Grenzen (ROG) (Reporters without Borders).

In a nutshell: background information on the lawsuit

1. Against which law is the lawsuit directed?

The lawsuit has been prompted by the new comprehensive surveillance powers granted to the BND by the amendment of 23 December 2016 to the BND law (Gesetz zur Ausland-Ausland-Fernmeldeaufklärung) (Act on Signals Intelligence Gathering in Germany of Foreigners Abroad). The Bundestag approved the law in October 2016 and it took effect on 1 January 2017.

2. What new powers does the BND have?

The law enables the BND to intercept communications without any specific grounds for doing so and to gather and process all content and traffic data. In other words: every e-mail, text message or telephone call sent or made by foreigners living abroad can be intercepted and used by the BND. The conditions under which this surveillance may be carried out are much too vague and too broad in scope and there is no effective means of monitoring these surveillance measures. Unlike surveillance of communications within Germany, which fall under the Code of Criminal Procedure (e.g., regarding the surveillance of suspects in the context of organised crime), the BND does not need to have any concrete suspicion or any court order to engage in the strategic surveillance of foreigners abroad. Thus surveillance can be ordered merely for the purpose of obtaining “information of significance for foreign and security policy”.

3. What is “strategic” surveillance?

“Strategic” surveillance means surveillance for no specific reasons or without grounds for suspicion. The BND is the only German authority that is allowed to engage in strategic surveillance. This so-called “strategic communications intelligence” initially covers entire data channels before the intercepted data are searched for information using certain search terms that the BND considers relevant for its work. Search terms of this kind, which are also called selectors, can be words or e-mail addresses and telephone numbers.

4. Who is affected?

The law cannot be used for strategic surveillance of German or EU Institutions, but otherwise it can target any group of people. So in principle anyone communicating in a foreign country can be targeted, including highly sensitive groups such as lawyers or journalists and their sources.

5. Why are foreigners protesting before a German court?

The only way to curb the excessive power of the BND is to lodge a formal constitutional complaint against the law. The organisations involved have taken the initiative and are supporting the plaintiffs by lodging a constitutional complaint and meeting the legal costs.

The plaintiffs are mainly investigative journalists from various countries, including many renowned journalists, such as the winner of the Alternative Nobel Prize Khadija Ismayilova (from Azerbaijan), Raúl Olmos (from Mexico), Blaž Zgaga (from Slovenia) and Richard Norton-Taylor (from Great Britain). The plaintiffs also include the German human rights lawyer Michael Mörth, who is working in Guatemala, and the French human rights organisation Reporters Sans Frontières. It is highly probable that the nature of their work makes their communications “interesting” for the BND and that their communication with colleagues and sources is affected by the law and that the information contained in it may be passed on by the BND to international intelligence services. This represents a direct threat for the plaintiffs and their informants and thus constitutes a risk for fundamental and human rights worldwide.

Apparently the political will was lacking to furnish the law with sufficient protection for journalists when it was drafted – despite multiple interventions by civil society. The legal channel is thus the only one still open.

6. If this mainly concerns foreigners, does it actually affect journalists in Germany?

Yes! Fortunately, the German media reports extensively about foreign countries, but in researching stories it depends on colleagues in the countries in question – especially with respect to sensitive issues requiring access to special sources. Currently, there are an increasing number of international research cooperations in which journalists from all over the world are working together on a single topic (e.g., the Panama Papers). Here the BND could intercept information “through the back door”, as it were, which it would not be allowed to do in Germany. In addition, local employees working in the foreign bureaus of German media likewise handle sensitive information and therefore need to be protected.

7. Why is this going before the German Constitutional Court?

The lawsuit (or to use the legally correct term, constitutional complaint) is the only way to challenge a law directly. In the case of the BND law this is necessary because by nature surveillance by the BND takes place secretly and therefore those it targets do not normally know that they are being kept under surveillance and have no opportunity to take action against specific surveillance measures.

8. What are the chances of success?

Statistically the chances of lodging a successful constitutional complaint are small, but at the same time, there are many reasons to categorise the legal measures in question as contravening the constitution. The alliance of six NGOs has managed to get seven plaintiffs to testify before the court who are able to portray the fatal consequences of the law in an impressive way. The text of the constitutional complaint has been written by a leading academic expert on state surveillance issues. Therefore, overall we believe we have a good chance of success in Karlsruhe.

9. What will happen if you win?

The aim of the complaint is to get the court to confirm that the law is unconstitutional. This would force the legislature to revise it and in particular to give journalists better protection. The Federal Constitutional Court has various options for dealing with an unconstitutional law. In the best case, the court would throw out the current version of the law and stipulate how the legislature should revise the law to make it comply with the constitution. Beyond that, it would be a significant strategic success, which ultimately would boost trust in an active and independent intelligence service.

10. Have there been other complaints about BND surveillance?

Yes. The Society for Civil Rights lodged a constitutional complaint against BND surveillance under the so-called G 10 at the end of 2016; this is a legal provision related to the surveillance of foreigners abroad currently under dispute. In 2015, the human rights organisation Reporters without Borders brought a case before the Federal Administrative Court in Leipzig, because it considered itself to have been subjected to illegal surveillance by the BND. The judges ruled in favour of part of the complaint at the end of the 2017; another part was rejected by the Federal Administrative Court and the Federal Constitutional Court and is currently pending proceedings before the European Court of Human Rights in Strasbourg.