Germany — Constitutional Complaint Lodged Against BND Law [UPDATE : Spies must obey the Constitution]

“The law allows the foreign intelligence agency to spy on journalists abroad almost without restrictions and to share the information with other secret services. This is an unacceptable restriction of press freedom, which is why we are supporting the affected parties in their court action.”

Christian Mihr — Executive Director of RSF Germany

“That’s not so easy to answer from where we sit. But we have no interest in investigating journalists on the whole. Neither domestically nor abroad. We are searching for information that is relevant to our security and looking for people who are planning evil deeds. It can’t be avoided that these people sometimes communicate with others who are less suspicious.”

Bruno Kahl — BND President

The BND [Bundesnachrichtendienst] acts as an early warning system to alert the German government to threats to German interests from abroad. It depends heavily on wiretapping and electronic surveillance of international communications.

February 1 2018 — The so-called “Journalist BND law” makes distinctions between journalists from EU countries and journalists from non-EU countries. Journalists who are citizens of non-EU countries can be legally subjected to surveillance by the BND without a court order [The Bundesnachrichtendienst is the foreign intelligence agency of Germany] if it is in the “interests of Germany.” As part of the case, the plaintiffs also launched a social media campaign entitled “No trust, no news.” Follow us on Twitter: @Intel_Today

RELATED POST: Who Is Who in World Intelligence and Security Agencies : BND ORGANIZATION CHART

RELATED POST: One Year Ago — German Bill will allow BND to Spy on Foreign Journalists

RELATED POST: Germany — Bruno Kahl: Why is the BND spying on journalists?

RELATED POST: Dutch Secret Services Wiretapped Lawyers and Journalists

RELATED POST: Germany: Why was the BND spying on Belgian journalist Arnaud Zajtman?

RELATED POST: Journalists for Hire: “How the CIA Buys the News”

RELATED POST: French Constitutional Council: Wireless Communication Intercepts Are Illegal

UPDATE (May 19 2020) — The German constitutional court just ruled that the constitutional protection of the press and of free speech also applies to foreigners.

Still, ‘non-targeted’ collection is allowed, but under very strict conditions.

“Specifically, the Federal Constitutional Court has declared paragraphs 6, 7 and 13 to 15 of the BND Act to be unconstitutional.

Paragraph 19, paragraph 1 and a paragraph of paragraph 24 of the BND Act are also unconstitutional insofar as they authorize the processing of data collected in connection with the strategic telecommunications education.

The BND can continue to work on the basis of the current text until the law is amended, at the latest until December 31, 2021.”

The ruling said that telephone and internet surveillance of foreigners abroad by the BND violated the freedom of the press and right to privacy in telecommunications enshrined in the country’s constitution.

“The German state authority is bound by the fundamental rights of the Basic Law, not only within the German territory.”

Just in case you did not know. One of the largest internet exchange points in the world, the Deutsche Commercial Internet Exchange (DE-CIX), is situated in Frankfurt, Germany.

END of UPDATE

The Bundesnachrichtendienst [BND] law was passed by the German Bundestag in October 2016 and came into effect at the start of 2017. The goal of the complaint is to establish that the BND law is unconstitutional.

Reporters Without Borders is part of an alliance that has worked for more than a year on the constitutional complaint project. The other partners in the alliance are the German Journalists Association (Deutscher Journalisten-Verband), the German Journalists Union (Deutsche Journalistinnen- und Journalisten- Union), Netzwerk Recherche, the journalist network n-ost, and the Gesellschaft für Freiheitsrechte.

Intel Today is not optimistic about the outcome of this legal complaint. In November 2016, the German Federal Constitutional Court rejected a request by the Bundestag Committee of Inquiry into NSA Activities that the German government release the US National Security Agency “Selector List” of spy targets in Germany.

RELATED POST: Germany Constitutional Court Rejects Disclosure of NSA Spy Targets

Endemic Legal Disease

Western democracies truly seem at pain to strike a balance between security and legality.

In October 2016, the French Constitutional Council ruled that the “legal exception” for reasons of National Security is simply illegal and bypasses the “Code d’Instruction Criminelle”.

The Constitutional Council stated that the text does not respect the Constitution and must be re-written. [It is not clear to me how and when this issue was solved.]

This week,  an appeal court ruled that the UK government’s mass digital surveillance regime is unlawful.

In the Netherlands, information revealed in the context of the alleged Russia interference in the US election clearly indicates that the Dutch police is using surveillance methods legally restricted to intelligence services.

In other countries — such as Belgium once described by the NYT as the wealthiest failed state on earth — the law simply states that the legal difficulties will be addressed by a future law, which of course was never written in the following 15 years.

This legal mess is a clear and present danger to democracy.

No trust, no news

As part of the case, the plaintiffs also launched a social media campaign entitled “No trust, no news.”

The campaign saw a number of reporters and editors on Tuesday post tweets containing nothing more than a single dot, a symbolic display of the state of news when reporters can’t protect the identity of sources.

UPDATE (January 1 2019) — During a recent interview, BND chief Bruno Kahl answered some questions about the surveillance of journalists by the BND.

On February 24 2017, the SPIEGEL revealed that the BND has monitored at least 50 telephone and fax numbers or e-mail addresses of journalists or editors around the world with their own so-called selectors.

SPIEGEL: Will you continue to conduct surveillance on journalists?

Kahl: We will adhere to the rules that are now law. There are different levels for Germans, Europeans and those journalists who work and operate in non-European countries. If a foreigner in Raqqa claims to be a journalist, we are going to conduct surveillance anyway if he is affiliated with Islamic State.

SPIEGEL: Yet you apparently didn’t draw any distinction between such a person and reporters working for the BBC and the New York Times. Where is the boundary?

Kahl: That’s not so easy to answer from where we sit. But we have no interest in investigating journalists on the whole. Neither domestically nor abroad. We are searching for information that is relevant to our security and looking for people who are planning evil deeds. It can’t be avoided that these people sometimes communicate with others who are less suspicious.

END of UPDATE

REFERENCES

Reporters Without Borders: constitutional complaint lodged against the BND law — Reporters Without Borders

RSF calls on Germany to stop bill allowing BND to spy on foreign journalists

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Germany —  Constitutional Complaint Lodged Against BND Law

One Year Ago — Germany : Constitutional Complaint Lodged Against BND Law

Germany — Constitutional Complaint Lodged Against BND Law [UPDATE : Spies must obey the Constitution]

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