This was not how Edward Snowden imagined the effects of his disclosures playing out. With this law, the German government is legitimising years of illegal surveillance by the federal intelligence services (Bundesnachrichtendienst, BND). And the Bundestag, with its eyes open, is passing a law that is clearly unconstitutional.
The German foreign intelligence service, deeply entangled in the quagmire of illegal surveillance with the USA and the UK, is being given new, expanded powers, some of which are unconstitutional. They even endanger freedom of the press. It is curious that the NSA and BND scandal is being investigated at a snail’s pace, at best.
A report published in September by Germany’s data protection commissioner, Andrea Voßhoff, highlighted the extent to which the BND had been violating laws, just at its Bad Aibling offices. For instance, and counter to its statutory obligations, the BND allegedly created files without instruction and captured personal data without permission. As these data are considered the property of citizens in the first instance, doing so would have required obtaining prior authorisation, a requirement which the BND simply ignored.
The German government is persistently blocking the investigation by the appointed NSA commission of inquiry. For instance, it is refusing to provide the search terms which the NSA used to monitor worldwide communication with the assistance of the BND. These so-called selectors would make it possible to verify who the BND was spying on and whether it complied with its statutory duties while doing so. The opposition has long been demanding that this information be released. The fact that the government is rushing to implement its reform without even waiting for the final report from the NSA commission of inquiry speaks volumes.
In principle, the objective of a BND reform should be to bring the intelligence services’ activities back onto a legal footing. The relationship between freedom and security needs to be rebalanced. But without effective controls, this will not be possible. Instead, the draft law pursues an entirely different aim, the coalition members’ rhetoric notwithstanding. The coalition is backing legal security, first and foremost for the BND employees tasked with monitoring communications.
In essence, the current reform focuses on the surveillance from within Germany of the content and circumstances of electronic communications by foreigners with other foreigners abroad. The coalition is creating a dedicated, special legal framework for this so-called foreign-foreign electronic communications surveillance. This new regulation violates civil and human rights.
This Is Not How You Protect Sources
The federal government wrongly assumes that such monitoring is not subject to the confidentiality of communications in accordance with Article 10 of Germany’s constitution, the Grundgesetz or basic law. The confidentiality of communications requirement prohibits unauthorised tapping of conversations, chat logs and other forms of information exchange between people.
But the federal government argues that this prohibition does not apply to foreigners communicating with each other abroad because outside of Germany, the authority of the German state is not subject to restrictions arising from the basic law’s fundamental rights. In other words, a foreigner outside of Germany cannot claim to be protected by the confidentiality of communications requirement.
This means that foreigners abroad enjoy substantially less protection than Germans abroad. If the confidentiality requirement applies, communication may only be monitored subject to certain conditions. Among other things, the core areas of private life as well as communication with members of professions subject to professional confidentiality, e.g. lawyers and journalists, must be protected.
However, the text of the basic law shows that it is not just the rights of German citizens which our constitution protects. Very few fundamental rights apply exclusively to citizens, and rights such as confidentiality of communication or freedom of the press are not among them. With its opposing assumption, the federal government is heading straight for an unconstitutional law.
In addition, the federal government is misjudging risks to press freedom. Foreign journalists could be submitted to comprehensive surveillance. The BND law lacks an exemption for journalists such as that found in Article 10 of the basic law.
Under the new law, the German intelligence services would be entitled to capture and process content data based on search terms to gain “other insights relevant to foreign and security policy”. The Federal Chancellery, in agreement with other federal ministries, would decide what falls under this definition.
This nebulous legal term makes it hard to envisage any situations not covered. Consider, for example, foreign journalists in the Near East or those who report on the dissident activities of the political opposition: their traffic data, i.e. information about their communication, is stored for six months in any case. That is not how you protect sources.
Urgently Needed: A Constitutional Appeal
But journalists within Germany are also insufficiently protected: the law assumes conditions which, from a technical point of view, cannot be implemented reliably. In essence, monitoring would be based on a filtering system designed to exclude domestic events and persons whose fundamental rights qualify for protection from the traffic being monitored on communication networks.
But by its own admission, the government accepts that protected traffic may not be immediately identifiable as such and line IDs cannot necessarily be unambiguously assigned to a person. So would capturing protected data simply be considered collateral damage?
Finally, the method proposed for supervising foreign-foreign telecommunications surveillance is inefficient and therefore sub-optimal. The “independent panel” which is to be set up for this purpose would have three members (federal judges or federal public prosecutors at the federal court of justice), who are meant to meet at least four times per year on a part-time basis. They are unable to impose penalties and have no right to institute proceedings.
They are not appointed by the Parliament, but by the federal cabinet, which thereby chooses its own supervisors. In addition, BND officials would regularly be deputised to the federal chancellery, which is responsible for ordering surveillance activities. Their job would be to decide whether their own colleagues’ activities are permissible or not.
Creating and configuring this new supervising entity would further fragment control of the intelligence services; it would result in there being three bodies tasked with legally assessing these matters. However, supervision becomes more efficient when the supervisors are knowledgeable and familiar with the subject matter. The more competencies are assigned to a given supervising entity, the better.
A parliamentary commissioner for the intelligence services, elected by the Bundestag and similar in nature to the parliamentary commissioner for the armed forces, is desperately needed.
Now that the bill has been passed by the Bundestag, it remains to be seen whether the BND reforms will also be waved through by the Bundesrat. In the FDP we are consulting about ways to bring an appeal before the constitutional court. Such a constitutional appeal is urgently needed. The BND law will not pass constitutional muster.