by Thorsten Koch

The surveillance practice by the federal intelligence service Bundesnachrichtendienst (BND), regarding telecommunications by foreigners, violates fundamental rights. This has been decided by the Federal Constitutional Court.

The BND is monitoring calls abroad, email and other means of communication. In principle, this was permissible in the sense that the Federal Republic’s must ensure its ability to act in terms of foreign and security policy. However, this had to be proportionate and will require improved control of the BND by an independent official body.

The Federal Constitutional Court responded to a lawsuit filed by several foreign investigative journalists. According to the judgment, all foreign citizens can rely on the German Basic Law. The BND law now needs to be improved and amended.

As far as the international cooperation goes – the BND has so far passed on a lot of data to foreign intelligence agencies – the judges have said there must be clear standards regarding compliance with the rule of law. In particular, no person should be put at risk.

The FDP made some initial suggestions in the wake of the judgment. The domestic political spokesman for the FDP parliamentary group, Konstantin Kuhle, said that the so-called, but already existing, G-10 commission could be responsible for oversight of the overall surveillance of communication. The parliamentary control body (PKGr), then, is to be strengthened, according to the FDP, and an intelligence service representative of the German Bundestag is to put out reports to the deputies on the official activities of the secret services.

Comment:

The BND would have been wise to implement an intermediate, auxiliary structure, to ensure that their surveillance operations be legal, until the existing law has been adapted. As it stands, the processing of telecommunication surveillance by the BND is not covered by the law, although the Constitutional Court has conceded time until the end of 2021 to pass adequate legal provisions.