Case Summary and Outcome

The First Senate of the Federal Constitutional Court of Germany held that, under Article 1(3) of the Basic law, Grundgesetz – GG, German state authority is bound by the fundamental rights of the German constitution when operating abroad. The Court found that foreign telecommunications surveillance conducted by the Federal Intelligence Service (Bundesnachrichtendienst – BND) violated the fundamental right to privacy of telecommunications, under Article 10(1) GG, and freedom of the press, under Article 5(1) GG. The appeal was brought by the Society for Civil Liberties (GFF) in coordination with Reporters Without Borders Germany (RSF), the German Journalists’ Association (DJV), German Journalists’ Union (DJU), the Network for Reporting on Eastern Europe (n-ost) and Netzwerk Recherche, along with several international investigative journalists in relation to alleged spying on journalists and their sources abroad. The constitutional complaint primarily challenged the 2016 amendment to the Federal Intelligence Service Act (Gesetz über den Bundesnachrichtendienst), which created a statutory basis for the telecommunications surveillance of non-German citizens in other countries. The judges reasoned that foreign intelligence gathering was not in theory incompatible with the constitution but needed to be justified, proportional and conducted with stricter oversight. Specifically, all data collection, processing and transfer to foreign entities under surveillance regimes must conform with constitutional obligations. The Court further recommended increased protections for those who could be endangered by transfers of such data, and for those “professional groups or groups of persons whose communications call for increased confidentiality,” such as lawyers and journalists. The challenged provisions continue to apply until 31 December 2021 to enable amendments to the statutory bases of telecommunications surveillance. 

Facts

On November 4, 2016, the German Bundesrat approved an amendment to the Act on the Federal Intelligence Service (Gesetz über den Bundesnachrichtendienst). The newly adopted “Act for Foreign-Foreign Signals Intelligence Gathering of the Federal Intelligence Service” expanded the powers of the Federal Intelligence Service (Bundesnachrichtendienst – BND), providing a legal basis for the telecommunications surveillance of non-German citizens located abroad. The Act also includes provisions to regulate the cooperation and data exchanges between foreign intelligence services. The adoption of the amendment was partially due to the revelations exposed by Edward Snowden into the global system of mass surveillance by intelligence agencies. Following a Bundestag investigation into the extent of BND involvement with the U.S. National Security Agency (NSA), the German government adopted a new BND law to govern the practice of foreign surveillance. Organisations such as Reporters Sans Frontieres have noted that the law provides a legal basis for foreign surveillance, rather than restricting it. 

A range of journalists and civil society organisations subsequently brought a constitutional challenge against the amended BND law. The complainants included the Society for Civil Liberties (GFF), Reporters Sans Frontieres Germany, German Journalists’ Association (DJV), German Journalists’ Union (DJU), the Network for Reporting on Eastern Europe (n-ost) and Netzwerk Rechereche, as well as several investigative journalists. The Executive Director of RSF Germany, Christian Mihr, stated that the amendment “allows the foreign intelligence agency to spy on journalists abroad almost without restrictions and to share the information with other intelligence agencies. This is an unacceptable restriction on press freedom.” The complainants argued that this method of surveillance might prevent anonymous sources from approaching journalists and enable the BND to monitor foreign partners of German media outlets during key investigations. 

In response, the German government rejected the argument that BND authorities operating abroad must respect the basic rights laid out in the German constitution. On May 19, 2020, following oral hearings, the First Senate of the German Constitutional Court published their judgment. 

Decision Overview

The Vice President of the Constitutional Court, Judge Stephen Harbarth, delivered the opinion of the German Federal Constitutional Court. 

The main issue before the Court was whether German state authority is bound by the fundamental rights of the Basic Law when operating outside of German territory and over non-German citizens. 

The complainants submitted that the basic rights to privacy of telecommunications (Article 10(1) of the Basic Law, Grundgesetz – GG) and the freedom of the press (Article 5(1) second sentence GG) are not rights that only extend to Germans. [p. 39] (“Bei diesen Grundrechten handele es sich nicht um solche, die auf Deutsche beschränkt seien.”) 

The federal government, however, argued that the constitutional complaint was inadmissible as the complainants had not demonstrated that measures based on the contested Act were likely to affect them. This was because German international surveillance “only covers a negligible part of worldwide telecommunications”, such that it would be “extremely unlikely that the complainants’ telecommunications will be recorded”. [p. 45] (“Denn der Dienst erfasse nur einen verschwindend geringen Teil der weltweiten Telekommunikation, so dass selbst bei hohem Telekommunikationsaufkommen eine Erfassung – erst recht eine weitere Verarbeitung und Auswertung – der Telekommunikation der Beschwerdeführer äußerst unwahrscheinlich sei.”) The federal government further submitted that the constitutional complaint was, in any case, unfounded as the fundamental rights do not provide protection outside of Germany or to foreigners. The government additionally emphasized the “extraordinary importance” (“außerordentliche Bedeutung”) of the foreign intelligence surveillance conducted by the BND for Germany’s decision making ability in a “world of new security policy challenges”. [p. 44] (“in einer Welt neuer sicherheitspolitischer Herausforderungen”)

The Federal Constitutional Court firstly held that the protection afforded by fundamental rights against German state authority is not limited to German citizens on German territory. The Court relied on Article 1 which states that “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority; (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world; and (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.”

Accordingly, Article 1(3) GG provides that German state authority, in this case the BND, is comprehensively bound by the constitutional rights of the Basic Law. The Court found that this position reflects Germany’s participation in the international community. Article 1(2) GG places the Basic Law in the context of the international human rights framework, under which rights protection is applied to the individual and extends beyond national borders. Following this principle, German fundamental rights as human rights apply to foreigners outside of Germany via the extension of German state authority. The Court limited the extent of any positive obligations owed by the state, however, by clarifying that the material scope of rights protection varies in different contexts. 

The Court subsequently recognised that, pursuant to Article 1(3) GG, the fundamental right to the privacy of telecommunications, under Article 10(1) GG, and freedom of the press, under Article 5(1) second sentence GG, were applicable to the current case. Article 10 states that the “The privacy of correspondence, posts and telecommunciations shall be inviolable” and Article 5(2) states that “Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.” Covert surveillance in general was established by the Court as an infringement in an earlier decision (see 1 BvR 966/09 –– 1 BvR 1140/09). [para. 146 f.]

  As such, foreign telecommunications surveillance conducted by the BND interfered with these rights by allowing access to a broad scope of data and highly private communications as well as by failing to provide any mechanism to protect the confidentiality of relationships – such as in the case at hand between journalists and their sources.  Therefore, due consideration must be given to the impact that new technological developments have on the fundamental rights, regardless of whether it concerns foreigners or German citizens. The Court further noted that this does not change the fact that foreign legal entities (Funktionsträger) themselves cannot invoke these fundamental rights. 

Applying this reasoning to the current case, the Court determined that the challenged provisions of the BND were unconstitutional. In principle, the Court found no objection to the legislative competence of the federal government to legislate foreign telecommunications surveillance, via the scope of “foreign affairs” under Article 73(1) no. 1 GG. However, this power does not include the investigation of all international crimes. The scope of any invesitgations must be limited to a very specific goal and within a designated timeframe. Further, it must concern “dangers which, by their nature and weight, can have an impact on the position of the Federal Republic in the international community”. [Guiding Principles] (“Es muss sich um Gefahren handeln, die sich ihrer Art und ihrem Gewicht nach auf die Stellung der Bundesrepublik in der Staatengemeinschaft auswirken können”) The Court held that the challenged provisions were unconstitutional on the basis that they authorised potential interferences with the right to privacy of telecommunications under Article 10(1) GG, without fulfilling the requirement set out in Article 19(1) second sentence GG: to clearly set out any affected fundamental rights. 

The Court additionally found that the substantive elements of the challenged telecommunications surveillance provisions did not satisfy the requirements of the fundamental rights. While strategic telecommunications surveillance may in principle be compatible with Article 10(1) GG, the broad scope of the provisions was not sufficiently restricted. For example, the power was not based on specific grounds set out by an independent body, but was only restricted by the purpose pursued. The Court reasoned that, despite the broad and indiscriminate scope of such surveillance measures, they can be justified under constitutional law due to the significant public interest in acquiring effective foreign intelligence. The nature of current threats such as cyber-attacks, international terrorism and human trafficking, necesitates surveillance measures outside of German territory, yet in compliance with the Basic Law. Such surveillance must be designed in accordance with the principle of proportionality, which was not satisfied by the present provisions. The Court recommended several measures, including the separation of communications between Germans and foreign citizens, the determination of the purpose of any surveillance by the legislator, and the restriction of data retention to no more than six months. Additionally, the Court recommended increased protection for professional groups or persons who merit increased protection, including lawyers and journalists. 

The process by which data obtained by the BND is transferred to other intelligence agencies was also found not to be sufficiently restricted. The Court held that the transfer of intelligence constitutes a separate interference with fundamental rights, requiring its own specific statutory provision. A separate assessment and decision by the BND regarding the data transfer, complete with documentation setting out the legal basis for this decision, would therefore be necessary. In order for such a transfer to be constitutional, the Court held that the federal government must require the BND to apply principles relating to the rule of law and fundamental human rights in their decision making. None of the challenged provisions relating to transfers under Section 24 of the Act on the Federal Intelligence Service, nor the provisions of the Federal Protection of the Constitution Act satisfy these constitutional requirements. 

The Court further held that provisions relating to cooperation between the BND and other foreign intelligence services did not satisfy such constitutional requirements. International cooperation between intelligence organisations in itself was not inherently unconstitutional. However, in the current case, there were not sufficiently clear statutory limits set out to protect the fundamental rights during this cooperation. Specifically, when transferring externally the authorities must confirm in advance that the recipient authority will use the data in accordance with international human rights standards. For example, the partner foreign intelligence services must confirm that any bulk “unselected data” will be deleted within six months. The Court also noted that the Federal Intelligence Service remains essentially responsible for the data it has collected and analysed. 

Finally, in order to be constitutional, the challenged provisions must adhere to an extensive independent oversight regime. In limited circumstances, such a regime may be restricted so as to ensure the effective performance of the intelligence service’s purpose. However, in order to fulfil the principle of proportionality, an independent oversight regime must provide legal oversight to curtail the powers of the BND. For instance, the volume of data to be retained and the geographic area of the surveillance must also be subject to restrictions. Such a body would require a separate budget, independent personnel management and autonomous operation. 

The Court concluded by recognising the public importance of international telecommunications surveillance. Therefore, such surveillance is, in principle, constitutional when operating in a way that is compatible with the fundamental rights. Nonetheless, the challenged provisions in their current form do not adhere to such requirements and are unconstitutional. Despite their unconstitutionality, the provisions continue to operate until 31 December 2021 at the latest, by which time there should be a revised legal basis for international telecommunications surveillance.