The legislature should once again intervene and further restrict the powers of the Federal Intelligence Service (BND). The Federal Constitutional Court laid down in a decision published on Thursday 8 October the view of suspicion-independent mass surveillance by foreign secret services as strategic domestic-foreign telecommunications intelligence, which has been controversial for years (ref.). : 1 BVR 1743/16, 1 BVR 2539/16). The authorization to use data vacuum cleaners used for this purpose is therefore partly incompatible with telecommunications privacy in the field of cyber threats.
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In principle, despite the particularly high level of interference, the instrument is compatible with Article 10 of the Basic Law, First Senate decidedStrategic telecommunications surveillance is “above the public interest”. However, the legal design of the tool is disproportionate: There is currently no adequate regulation to separate data from purely domestic telecommunications transactions, with BND relying on email addresses with the .de ending. The Article 10 law at least contains no guidelines on how to deal with data “essentially collected from domestic telecommunications transactions” on the Internet.
Study: Every year 40 lakh houses will have to be connected with fiber opticsThe Karlsruhe judge emphasizes that the protection of the core area of private life for foreigners abroad is also inadequate. Targeted recording of internal processes, thoughts and experiences of a highly personal nature is also unacceptable to foreigners abroad. Search terms related to this privacy cannot be used here.
Yield was mostly poor due to cyber threats
The Constitutional Court also complains that the retention period for documentation is too short. The design of independent controls by the G10 Commission is also inadequate. For example, this supervision should compensate for the real weakness of individual legal protection options, which results in only limited information and notification obligations in relation to strategic telecommunications surveillance. As a replacement, “technically competent, professional judicial-like control should be ensured”. It is not enough that G10 Commission members “merely hold a public voluntary office”.
Karlsruhe judges have given the legislature until the end of 2026 to adapt the standard into the law restricting telecommunications privacy. Till then it will remain in force with some restrictions. In recent years, the BND has often not been able to gain any major information by using data vacuum cleaners. Particularly in the “cyber” threat area, the yield from screening international telecommunications with search terms remained poor in 2019. With the appointment of the G10 Commission, 130 selectors were appointed to the region in the first half of the year. However, the department conducting the evaluation did not classify any of the intercepted telecommunications traffic as relevant to intelligence.
Continuing puzzle work by civil rights activists
The Federal Constitutional Court had already ruled in May 2020 that strategic telecommunications intelligence practiced by the BND violated the Basic Law. A little later, the Bundestag re-legalized this form of mass surveillance in principle, although since then the requirements for the groups of people who can be detected have increased and controls should be improved. Also, the legislature significantly expanded the hazardous areas in which the BND data vacuum cleaner can start.
“Karlsruhe’s latest decision proves that our strategic lawsuits to better protect privacy are having an impact,” says Bijan Moini of the Society for Freedom Rights (GFF) about the new announcement. “Gradually, the decisions we have won from the Federal Constitutional Court are bringing Secret Service work back to the basis of the Basic Law.” GFF had already filed a lawsuit together with Amnesty International in 2016.
(MKI)
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