The online surveillance by the German Federal Intelligence Service (BND) of non-German nationals when not in Germany is unconstitutional in its current form, the German Federal Constitutional Court in Karlsruhe decided today. Several investigative journalists and the organization “Reporters Without Borders” had filed a complaint against the practice. In addition, other journalistic organizations coordinated the lawsuit, including the Society for Civil Liberties Rights and the German Journalists’ Association. The revision of what is generally known as the BND Act, which came into force in 2017 and allows the German Federal Intelligence Service to – without cause – monitor electronic communications such as chats, emails and telephone calls made by non-Germans located outside of Germany, was highly controversial from the outset, with significant concerns as to its constitutionality.
The Association of the Internet Industry welcomes today’s ruling by the Karlsruhe court. “With today’s decision, the German Federal Constitutional Court has taken the opportunity to set clear limits to the surveillance powers of intelligence services with this landmark ruling, and to provide the German Federal Government with guidelines for a constitutionally-compliant structure,” says Klaus Landefeld, Vice-Chair of the eco Association Board. “In the age of digital communication, the secrecy of telecommunications has been decisively strengthened. In particular, the court considers as necessary a comprehensive, independent control of all measures in advance – this has also been a central demand of our association for years.” Landefeld participated in the oral hearing of the Federal Constitutional Court as an expert on behalf of the eco Association in January of this year.
The decision of the constitutional judges is unambiguous: In its current form, the BND Act in all its essential articles violates the fundamental right to telecommunications secrecy (Art. 10.1 of the German Constitution) and the freedom of the press (Art. 5 (1) sentence 2 of the German Constitution). This concerns the collection and processing of data and its transmission within the framework of cooperation with other foreign intelligence services. In its ruling, the Federal Constitutional Court has come to a landmark decision on the territorial scope and extraterritorial protective effect of the secrecy of telecommunications (Art. 10 of the German constitution). The protection of fundamental rights in its defence-law dimension also applies if a communication taking place abroad is recorded and evaluated by the state within Germany.