Another constitutional complaint filed against the BND law

Reporters Without Borders and the Society for Freedom Rights filed a constitutional complaint against the amended law for the Federal Intelligence Service on Thursday. In 2020, they had already sued successfully against the previous law. The amendment hastily passed by the federal government in 2021 does not implement the ruling of the constitutional judges or only implements it in a deficient manner, they write and call the Karlsruhe judges again.

In the 2020 ruling, the constitutional judges expressly criticized the lack of protection for journalists’ communication with their sources and the theory put forward by the Federal Ministry of the Interior and the BND that the protection of fundamental rights ends at the German borders. The judges also declared the unrestricted surveillance of Germans and residents by the foreign intelligence service to be inadmissible. At least the separation of telecommunications data from nationals is necessary.

Demands from Karlsruhe not met

In the opinion of the Society for Freedom Rights (GFF) and Reporters Without Borders (RoG), however, the federal legislature has clearly fallen short with the new law in all of these questions. The overview of the 149-page complaint states that neither the confidentiality of journalists is protected by the new regulation, nor has the legislature fulfilled the requirements of the constitutional judges for clear limits on the extent and goals of surveillance.

In addition, according to the civil rights organizations, the data monopoly has been messed up with external services, and the federal legislature is again dividing the world into Germans and people living in Germany. According to the plaintiffs’ complaint, foreigners with a permanent residence in Germany are placed in a much worse position: “They can be monitored without restrictions as soon as they leave Germany for only a short time.”

Extension of surveillance at home and abroad

The complainants warn that instead of introducing barriers required under constitutional law, the legislature even expanded the monitoring options with the amendment. “With the authority for the total recording of so-called machine-to-machine communication by the secret service, large parts of the online activities of people in Germany can be processed and stored for up to six months,” they write. Accessing websites, booking tickets or using online banking can be recorded and stored “without cause and therefore en masse”.

Finally, the “use of state Trojans against foreigners abroad” has also been newly approved. In doing so, the legislature has created “the lowest intervention threshold ever for the use of state Trojans in German law”.

“It is completely incomprehensible that the amendment to the law again violates fundamental rights on a massive scale: we are attacking more than 30 points,” said Bijan Moini, the coordinator of the new constitutional complaint at the GFF.

Warning ignored by experts

It was to be expected that the complaint would come. At the expert hearing in the Bundestag, the lawyers invited almost unanimously questioned the constitutionality of the government’s proposals, at least in part.

In view of the “stubbornness” with which the legislature brushed off constitutional concerns in the first amendment in 2016, Saarbrücken law professor Dr. Michael Elicker even of a “conditionally intentional violation of the constitution” by the legislature.

(my)