Constitutional Court hears case against controversial snooping law

Constitutional Court hears case against controversial snooping law

A hearing at Germany’s Constitutional Court next week may pave the way for a landmark ruling on internet surveillance

Germany’s Federal Constitutional Court (BVerfG) will hold an oral hearing on 14 and 15 January on whether global internet surveillance by Germany’s foreign intelligence agency BND is constitutional.

The hearing comes after an alliance of five media organisations including n-ost and the Society for Civil Rights (GFF) lodged a constitutional complaint before the court challenging BND’s surveillance powers.

The anticipated landmark ruling by the constitutional court will be the first on the BND’s surveillance activities in over 20 years and could significantly strengthen international human rights protection with regard to the secrecy of telecommunications and freedom of the press.

"Digitalisation enabled intelligence agencies to carry out numerous new forms of surveillance, while fundamental rights have been completely disregarded," said Ulf Buermeyer, chairman of the GFF. "It seems that secrecy of telecommunications no longer applies to the BND. We urgently need protections against intelligence agencies that monitor global Internet traffic without any concrete suspicion or court order".

The official agenda of the oral hearing - published by the Court - suggests that the Federal Government will have to answer a number of complex questions, including details on how BND Internet surveillance works in practice. The mere fact that the court will ask such questions shows a severe lack of clarity in this matter - and highlights the secretive character of the “BND law”. The judges of the First Senate of the Court also announced that they plan to discuss the inadequate control mechanisms of foreign surveillance.

The case also raises a set of fundamental questions of whether German authorities abroad must respect the basic rights laid out in the German constitution. The German government does not think this is the case.

"We consider this to be an absurd view. Article 1 of the Basic Law binds the government to respect basic rights - regardless of whether it is active at home or abroad", Buermeyer said. "People abroad are also human beings and have a right to privacy. Especially a German intelligence agency should not be allowed to simply decide whether it respects this right or not".

This inadequate protection of fundamental rights in the “BND law” motivated a group of foreign journalists to bring forward the constitutional complaint. The claimants fear that informants will stop approaching journalists with sensitive issues for fear of permanent surveillance. 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 such as the Panama Papers.

The constitutional complaint against the BND law was filed, among others, by the winner of the Alternative Nobel Prize, Khadija Ismayilova, and the international human rights organization Reporters without Borders. Prof. Dr. Matthias Bäcker, a renowned constitutional lawyer from Mainz, is the legal representative. The lawsuit is coordinated by the Society for Civil Liberties (GFF) in collaboration with Reporters without Borders Germany, German Journalists' Association (DJV), German Journalists' Union dju in ver.di, journalism network n-ost and netzwerk recherche.

More information including the complete constitutional complaint (in German) can be found at: