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German Federal Constitutional Court demands more oversight on BND spying

2020-05-19 13:19:45, erdgeist

The German foreign intelligence service must be subject to more oversight, but may continue mass surveillance of telecommunication. Today's judgement serves as a powerful reminder to lawmakers that the previous law governing the BND was grossly unconstitutional.

Today, with its ruling [1] on the "BND law" – which covers the German foreign intelligence service – the Federal Constitutional Court has recognized the present practice of unrestricted mass surveillance of communications by the Federal Intelligence Service as unconstitutional. The ruling puts an end to the previous approach to mass surveillance, in which the secret service was essentially free to act as it pleased, without effective oversight, and regarded non-Germans as fair game for surveillance. The ruling mandates future regulation to provide for independent and comprehensive oversight of the secret service's surveillance activities. A corresponding oversight authority must be established.

By recognising the validity of fundamental rights for foreigners, the court has anchored fundamental human rights. Unfortunately the details of the ruling allow the continuation of the previous technical BND practices of surveillance, only with more selective targeting, better legal justification and under a new supervisory authority. The government was ordered to better protect the core areas of private self-expression of those subject to BND surveillance measures.

"Everything will hinge on the means and authority with which the new BND control authority will be equipped. That will determine whether it will actually be able to oversee the secret service in practice. At the end of the day, those things will decide the lasting relevance of this verdict", said Frank Rieger, a speaker for the Chaos Computer Club. "While the court did not end the practice of mass surveillance per se, it did prescribe better regulation and oversight."

The Constitutional Court has also imposed restrictions on the huge grey area of the international exchange of intelligence wiretap data, which the public has known about at least since the Snowden revelations. In particular, the previous practice of data exchange without oversight, thus circumventing interception restrictions in individual states, will no longer be possible for the BND. The shadowy realm of bilateral intelligence agreements must now - as far as the BND is concerned - be subjected to oversight and accountability.

"Unfortunately, the court has not been able to bring itself to end the global surveillance practice of the BND as a matter of principle, but is only trying to press it into a more concrete legal framework", summarized Rieger. "That the basic rights apply in principle to all people worldwide is an important decision, which is unfortunately however already undercut in the judgement itself by the numerous exceptions for restricting constitutional rights."

In 2017, even before the BND-NSA parliamentary investigations were over, the BND law was reformed, essentially legalizing what the foreign secret service had been doing for years illegally anyway. A long overdue actual and effective reform of intelligence oversight was not undertaken.

With this ruling, the Federal Constitutional Court has once again ruled a surveillance law to be unconstitutional. The fact that our government is consistent in being either unwilling or unable to draft laws that hold up to constitutional scrutiny is and remains a scandal. Government must adjust to recognize the existence of the constitution and figure out whether it feels it can continue to produce major screwups like the breach of the citation requirement. Whatever motivated them to allow the secret services to think up absurd quasi-legal (and now officially court-destroyed) notions like "Outer Space Theory" or "Functionary Theory": It does not seem to be working out.

The Chaos Computer Club acted as an expert for the Federal Constitutional Court in the course of the proceedings and has written a statement on the matter. [3][4]