Win for media: Top court rules German surveillance violates rights

By Rachel More, dpa
Karlsruhe, Germany (dpa) – Mass surveillance conducted abroad by Germany is a violation of fundamental rights, the Constitutional Court ruled on Tuesday, siding with media activists who have decried the practice as an affront to press freedom.

“In their current form, surveillance powers of the Federal Intelligence Service [BND] regarding foreign telecommunications violate fundamental rights of the Basic Law,” the judges said.

The case was brought by Reporters Without Borders, six foreign journalists and a human rights lawyer against legislation reformed in late 2016 that defines the scope and activities of the agency, allowing it to sift through data without needing a concrete suspicion to do so.

German citizens in theory enjoy protections against surveillance.

However, the complainants argued that many investigative reporters in Germany might be reluctant to work with international partners since that could open their work up to snooping.

The data collected by the BND through surveillance of foreigners could also be passed on to other national intelligence services.

The top court, based in the western city of Karlsruhe, said the legislation must be reworked by late next year at the latest.

The judges ruled that the BND is bound by Germany’s Basic Law constitution to protect the right to privacy, and that this does not only apply to people within the country.

“The Federal Constitutional Court has once again underscored the importance of press freedom,” said Christian Mihr, director of Reporters Without Borders (RSF) Germany.

“We are glad that [the court] is putting a stop to escalating surveillance practices of the Federal Intelligence Service abroad,” he added.

However, others have argued that the ruling will damage Germany’s intelligence capabilities in the fight against international crime and terrorism.

In its ruling, the Constitutional Court did not outright ban the blanket surveillance of data, with incoming court president Stephan Harbarth noting that there was “an overriding public interest” in such intelligence-gathering in the interest of foreign policy and security.

Indeed, a government official responsible for intelligence services said he did not believe the ruling would hamper the BND’s activities.

The court put forward a very comprehensive list of criteria for necessary legislative reforms to make the BND conform with the ruling, Johannes Geismann said.

The government would take its time to look at this, he added, while noting that he was “confident that we will find a reasonable arrangement to enable the BND to continue to fulfil its tasks.”

The court has ordered the state to act on a number of points, for example by specifying data volumes from the offset and limiting the period in which data is saved to six months at most.

Confidential communications between members of certain professions, such as lawyers and journalists, must be offered special protection.

Individual rights and freedoms must also be taken into account in the BND’s work with other countries’ intelligence services.

In an increasingly interconnected and globalized world, the German state is to work within the framework of the fundamental rights set out in the constitution – “irrespective of where, whom and in what form.”

Mihr called the outcome a “milestone for the protection of journalism in the digital age.”

He said that Reporters Without Borders was now considering similar action in other countries.