The country’s Constitutional Court ruled today that the intelligence service is breaking Germany’s Basic Law – its constitution – when it monitors telecoms traffic.
“This applies to the collection and processing of data, the transfer of data thus obtained to other entities and the cooperation with foreign intelligence services,” said the court – the Bundesverfassungsgericht – in a ruling this morning. (English version of ruling here.)
The Constitutional Court, meeting in Karlsruhe, said the government has until the end of 2021 to amend the law.
The case was brought by Reporters Without Borders, also known as Reporters sans frontières, as well as German journalists’ unions and some foreign journalists. They challenged a 2017 amendment to the law that governs the Federal Intelligence Service (Bundesnachrichtendienst – BND) that allowed it to conduct telecommunications surveillance of foreigners in other countries.
The court decided this violates their fundamental right to privacy of telecommunications and to freedom of the press, guaranteed by the Basic Law.
Deutsche Welle, the German government-funded public international broadcaster, reported this morning that Frank Überall, head of the German journalists’ union DJV, described the ruling as a “comprehensive victory for press freedom”.
Überall (pictured – picture from BR) added: “A secret service that wants to protect democracy cannot trample on important democratic freedoms.”
The law is likely to affect DE-CIX, the Frankfurt-based internet exchange. According to a recent report in the news magazine Der Spiegel, the BND is able to tap into the exchange at will, giving it access up to 1.2 trillion communications per day. Capacity has approached DE-CIX for a comment.
Deutsche Welle said that, according to a confidential document on signals intelligence leaked to Der Spiegel and Bavarian public broadcaster BR last week, the BND has been trying to self-regulate what kind of communications among German citizens it may eavesdrop on, based on the new law.
Until now, Der Spiegel reported, the BND had considered foreign nationals living outside Germany essentially fair game, as they assumed they were not protected by Germany’s constitution. That has changed today.
The court said that “statutory bases for foreign telecommunications surveillance can be designed in conformity with the Constitution”.
The existing law, the law that was successfully challenged, gave the BND powers to access telecoms routes and networks to collect data in order to then identify communications that are of interest.
In future, data involving German nationals or persons within Germany must be separated from the other data and deleted prior to any further analysis, said the court. “Data regarding such telecommunications may be collected incidentally for technical reasons, but is excluded from examination or use by the Intelligence Service.”
