Federal Constitutional Court to hear complaint by journalists against „BND law“

Federal Constitutional Court to hear complaint by journalists against „BND law“

The Federal Constitutional Court will hear our case against the “BND law” on 14/15 January 2020. The law allows intelligence services to spy on journalists abroad. The complaint was brought forward by n-ost and 5 media organisations

The Federal Constitutional Court will hear the case against the “BND law” on 14/15 January 2020. This may be an important step toward a landmark decision on the powers of the intelligence services and the lawfulness of global mass surveillance. The hearing will be held following a constitutional complaint by an alliance of five media organisations, including n-ost and the Gesellschaft für Freiheitsrechte (GFF).

Is the Federal Intelligence Service (Bundesnachrichtendienst - BND) - as the law currently stipulates – allowed to spy on telephone conversations abroad without restrictions, evaluate Internet traffic and - de facto -  abolish privacy of millions of people? How can vulnerable professional groups such as journalists be protected from such mass surveillance? Questions that have been raised by NSA whistle-blower Edward Snowden and discussed globally are now being negotiated in Karlsruhe.

A possible landmark ruling would be the first ruling on BND surveillance for more than 20 years. After a massive increase in surveillance activities in the digital sphere, the Federal Constitutional Court will express its opinion on the subject for the first time. Oral hearings are a rare procedure at the Federal Constitutional Court and are typically reserved for proceedings that are of fundamental constitutional importance. In 2018, for example, only two oral hearings took place before the Court despite having received more than 3000 constitutional complaints.

Seven years after Edward Snowden's revelations of a global system of mass surveillance, the Federal Constitutional Court is likely to decide on the legality of Germany's participation in these processes. During the NSA scandal, an investigative committee of the Bundestag, Germany's parliament, brought to light that the BND helped and supported the NSA in its endeavours. This resulted in a new "BND law". But instead of setting clear limits to the intelligence services, the federal government simply legalized surveillance abroad - despite massive protests from civil society.

The Society for Liberty Rights (GFF) put together an alliance of internationally renowned journalists and media organisations. Together they filed a constitutional complaint against the BND Act at the end of 2017. The plaintiffs fear, among other things, that the protection of sources will be undermined: If secret services can store and evaluate every communication, journalistic contacts all over the world will lose confidence in the media - in the worst case they will no longer turn to the press with their revelations. The BND could also undermine German editorial confidentiality if, for example, it spied on foreign media organisations that cooperate with German media on large-scale investigative projects (for example the Panama Papers). During the oral hearing in January, the Federal Constitutional Court will hear the positions of the parties and it will consult experts. The Court is expected to announce a decision in the weeks that follow the hearing.

Background:

The alliance that brought forward this constitutional complaint include Gesellschaft für Freiheitsrechte (GFF), Reporters Without Borders (ROG), Deutscher Journalisten-Verband (DJV), Deutsche Journalistinnen und Journalisten Union dju in ver.di, the n-ost journalist network and netzwerk recherche. The appellants include, among others, Khadija Ismayilova, winner of the Alternative Nobel Prize. Professor Dr. Matthias Bäcker of Mainz University acts as the authorized legal counsel.