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1title: German Federal Constitutional Court demands more oversight on BND spying
2date: 2020-05-19 13:19:45
3updated: 2020-05-19 13:19:45
4author: erdgeist
5tags: update, pressemitteilung
6
7The German foreign intelligence service must be subject to more oversight, but may continue mass surveillance of telecommunication. Today's judgement serves as a powerful reminder to lawmakers that the previous law governing the BND was grossly unconstitutional.
8
9<!-- TEASER_END -->
10
11Today, with its ruling \[1\] on the "BND law" – which covers the German
12foreign intelligence service – the Federal Constitutional Court has
13recognized the present practice of unrestricted mass surveillance of
14communications by the Federal Intelligence Service as unconstitutional.
15The ruling puts an end to the previous approach to mass surveillance, in
16which the secret service was essentially free to act as it pleased,
17without effective oversight, and regarded non-Germans as fair game for
18surveillance. The ruling mandates future regulation to provide for
19independent and comprehensive oversight of the secret service's
20surveillance activities. A corresponding oversight authority must be
21established.
22
23By recognising the validity of fundamental rights for foreigners, the
24court has anchored fundamental human rights. Unfortunately the details
25of the ruling allow the continuation of the previous technical BND
26practices of surveillance, only with more selective targeting, better
27legal justification and under a new supervisory authority. The
28government was ordered to better protect the core areas of private
29self-expression of those subject to BND surveillance measures.
30
31"Everything will hinge on the means and authority with which the new BND
32control authority will be equipped. That will determine whether it will
33actually be able to oversee the secret service in practice. At the end
34of the day, those things will decide the lasting relevance of this
35verdict", said Frank Rieger, a speaker for the Chaos Computer Club.
36"While the court did not end the practice of mass surveillance per se,
37it did prescribe better regulation and oversight."
38
39The Constitutional Court has also imposed restrictions on the huge grey
40area of the international exchange of intelligence wiretap data, which
41the public has known about at least since the Snowden revelations. In
42particular, the previous practice of data exchange without oversight,
43thus circumventing interception restrictions in individual states, will
44no longer be possible for the BND. The shadowy realm of bilateral
45intelligence agreements must now - as far as the BND is concerned - be
46subjected to oversight and accountability.
47
48"Unfortunately, the court has not been able to bring itself to end the
49global surveillance practice of the BND as a matter of principle, but is
50only trying to press it into a more concrete legal framework",
51summarized Rieger. "That the basic rights apply in principle to all
52people worldwide is an important decision, which is unfortunately
53however already undercut in the judgement itself by the numerous
54exceptions for restricting constitutional rights."
55
56In 2017, even before the BND-NSA parliamentary investigations were over,
57the BND law was reformed, essentially legalizing what the foreign secret
58service had been doing for years illegally anyway. A long overdue actual
59and effective reform of intelligence oversight was not undertaken.
60
61With this ruling, the Federal Constitutional Court has once again ruled
62a surveillance law to be unconstitutional. The fact that our government
63is consistent in being either unwilling or unable to draft laws that
64hold up to constitutional scrutiny is and remains a scandal. Government
65must adjust to recognize the existence of the constitution and figure
66out whether it feels it can continue to produce major screwups like the
67breach of the citation requirement. Whatever motivated them to allow the
68secret services to think up absurd quasi-legal (and now officially
69court-destroyed) notions like "Outer Space Theory" or "Functionary
70Theory": It does not seem to be working out.
71
72The Chaos Computer Club acted as an expert for the Federal
73Constitutional Court in the course of the proceedings and has written a
74statement on the matter. \[3\]\[4\]
75
76## Links:
77
78- \[1\] [Federal Constitional Court: Statement 19 May 2020
79 (English)](https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-037.html)
80- \[2\] [Background to the complaint at Reporters Without Borders
81 (German)](https://www.reporter-ohne-grenzen.de/pressemitteilungen/meldung/verfassungsbeschwerde-gegen-das-bnd-gesetz/)
82- \[3\] [Statement regarding the expert brief
83 (German)](/de/updates/2020/bnd-gesetz-bverfg)
84- \[4\] [Expert brief of the Chaos Computer Club on the complaint to
85 the BVerfG regarding foreign surveillance
86 (German)](/system/uploads/290/original/BNDgesetz_CCC-Stellungnahme.pdf)