German court stops spy agencies from conducting mass surveillance of foreigners

BND GermanyGermany’s Federal Court of Justice has ruled that the country’s intelligence agencies are not entitled to spy en masse on the telecommunications exchanges of foreign citizens. The ruling comes in response to a lawsuit filed by several journalist groups, including the German chapter of Reporters Without Borders. The groups partnered with the German-based Society for Civil Rights and argued in their lawsuit that existing law did not prevent German spy agencies from spying at will on the communications of journalists. This could potentially allow the intelligence agencies to identify trusted sources that journalists use in their work, and even share that information with intelligence agencies of other countries, they argued.

Germany’s foreign intelligence agency, the Federal Intelligence Service, or BND, is uniquely positioned with access to a vast volume of telecommunications data and content. This is because Germany hosts some of the busiest and highest-capacity Internet exchange points in the world. The country’s extensive telecommunications infrastructure includes the so-called DE-CIX exchange in Frankfurt, believed to be the world’s second-busiest Internet node. It is believed that the DE-CIX Internet exchange alone carries over a trillion messages per day to and from Western Europe, Russia, the Middle East and North Africa.

The BND is not allowed to spy on the communications of German nationals. However, according to German media reports, the agency had until now assumed that Internet messages sent by foreigners, which passed through German-based exchanges, were fair game for interception and analysis. This was because, according to the BND, foreign nationals were not protected under Germany’s Basic Law —a term that refers to the German Constitution— which means they and their communications had no privacy protections under German law.

But this assumption was dispelled on Tuesday by the Federal Court of Justice, which is Germany’s highest court. The court ruled that telecommunications surveillance against foreigners is subject to Article 10 of Germany’s Basic Law, which affords German citizens the right to privacy. In other words, the law also protects the telecommunications of foreigners, according to the court, which means that surveillance of foreign communications should be carried out only in a targeted fashion, in response to specific cases or to target specific individuals. The court challenged the mass-surveillance —as opposed to a targeted surveillance— model of the BND’s data collection, and said that it the spy agency’s activities required more stringent oversight, especially in relation to the communications of reporters and lawyers. Finally, the court agreed with the plaintiffs that the constitutional safeguards against the BND’s ability to share its intercepted data with foreign spy agencies were insufficient.

In its ruling, the court gave the German government until December of 2021 to propose a new law governing telecommunications surveillance against foreigners, which will be compliant with the German Constitution.

Author: Joseph Fitsanakis | Date: 20 May 2020 | Permalink