From 6d4546ab44d81e15de0845018f08aa51b72b466b Mon Sep 17 00:00:00 2001 From: 46halbe <46halbe@berlin.ccc.de> Date: Tue, 19 May 2020 13:19:45 +0000 Subject: committing page revision 1 --- updates/2020/bverfg-geheimdienstkontrolle.en.md | 86 +++++++++++++++++++++++++ 1 file changed, 86 insertions(+) create mode 100644 updates/2020/bverfg-geheimdienstkontrolle.en.md diff --git a/updates/2020/bverfg-geheimdienstkontrolle.en.md b/updates/2020/bverfg-geheimdienstkontrolle.en.md new file mode 100644 index 00000000..f7089ea5 --- /dev/null +++ b/updates/2020/bverfg-geheimdienstkontrolle.en.md @@ -0,0 +1,86 @@ +title: German Federal Constitutional Court demands more oversight on BND spying +date: 2020-05-19 13:19:45 +updated: 2020-05-19 13:19:45 +author: erdgeist +tags: update, pressemitteilung + +The 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. + +<!-- TEASER_END --> + +Today, with its ruling \[1\] on the "BND law" – which covers the German +foreign intelligence service – the Federal Constitutional Court has +recognized the present practice of unrestricted mass surveillance of +communications by the Federal Intelligence Service as unconstitutional. +The ruling puts an end to the previous approach to mass surveillance, in +which the secret service was essentially free to act as it pleased, +without effective oversight, and regarded non-Germans as fair game for +surveillance. The ruling mandates future regulation to provide for +independent and comprehensive oversight of the secret service's +surveillance activities. A corresponding oversight authority must be +established. + +By recognising the validity of fundamental rights for foreigners, the +court has anchored fundamental human rights. Unfortunately the details +of the ruling allow the continuation of the previous technical BND +practices of surveillance, only with more selective targeting, better +legal justification and under a new supervisory authority. The +government was ordered to better protect the core areas of private +self-expression of those subject to BND surveillance measures. + +"Everything will hinge on the means and authority with which the new BND +control authority will be equipped. That will determine whether it will +actually be able to oversee the secret service in practice. At the end +of the day, those things will decide the lasting relevance of this +verdict", said Frank Rieger, a speaker for the Chaos Computer Club. +"While the court did not end the practice of mass surveillance per se, +it did prescribe better regulation and oversight." + +The Constitutional Court has also imposed restrictions on the huge grey +area of the international exchange of intelligence wiretap data, which +the public has known about at least since the Snowden revelations. In +particular, the previous practice of data exchange without oversight, +thus circumventing interception restrictions in individual states, will +no longer be possible for the BND. The shadowy realm of bilateral +intelligence agreements must now - as far as the BND is concerned - be +subjected to oversight and accountability. + +"Unfortunately, the court has not been able to bring itself to end the +global surveillance practice of the BND as a matter of principle, but is +only trying to press it into a more concrete legal framework", +summarized Rieger. "That the basic rights apply in principle to all +people worldwide is an important decision, which is unfortunately +however already undercut in the judgement itself by the numerous +exceptions for restricting constitutional rights." + +In 2017, even before the BND-NSA parliamentary investigations were over, +the BND law was reformed, essentially legalizing what the foreign secret +service had been doing for years illegally anyway. A long overdue actual +and effective reform of intelligence oversight was not undertaken. + +With this ruling, the Federal Constitutional Court has once again ruled +a surveillance law to be unconstitutional. The fact that our government +is consistent in being either unwilling or unable to draft laws that +hold up to constitutional scrutiny is and remains a scandal. Government +must adjust to recognize the existence of the constitution and figure +out whether it feels it can continue to produce major screwups like the +breach of the citation requirement. Whatever motivated them to allow the +secret services to think up absurd quasi-legal (and now officially +court-destroyed) notions like "Outer Space Theory" or "Functionary +Theory": It does not seem to be working out. + +The Chaos Computer Club acted as an expert for the Federal +Constitutional Court in the course of the proceedings and has written a +statement on the matter. \[3\]\[4\] + +## Links: + +- \[1\] [Federal Constitional Court: Statement 19 May 2020 + (English)](https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-037.html) +- \[2\] [Background to the complaint at Reporters Without Borders + (German)](https://www.reporter-ohne-grenzen.de/pressemitteilungen/meldung/verfassungsbeschwerde-gegen-das-bnd-gesetz/) +- \[3\] [Statement regarding the expert brief + (German)](/de/updates/2020/bnd-gesetz-bverfg) +- \[4\] [Expert brief of the Chaos Computer Club on the complaint to + the BVerfG regarding foreign surveillance + (German)](/system/uploads/290/original/BNDgesetz_CCC-Stellungnahme.pdf) -- cgit v1.2.3