German Mass Surveillance of Foreign Nationals Declared Unconstitutional

The German constitutional court has ruled that mass surveillance of foreign nationals is unconstitutional. The ruling is being seen as a victory.

It’s one of the observations held by surveillance aware critics have held. The US might not be able to conduct surveillance of its own citizens under certain circumstances, but it can spy on anyone outside the country. Meanwhile, other countries operate under similar style laws where they can’t spy on their own citizens, but foreign nationals are fair game. Then, with intelligence sharing, surveillance gets passed around to ensure that constitutional rights are overridden in every country and that mass global surveillance can happen.

Well, if you are one of those people who feel that this is the reality today, that reality now has a crack in it. The German Constitutional court has ruled that surveillance of foreign nationals is unconstitutional. From the BBC:

The BND will no longer be able to monitor the emails or other data of foreigners abroad, without good reason.

Currently some of that data is passed on to other countries’ spy agencies.

The key question considered by the court was whether the German state was bound by the protections of the constitution outside the country.

The BND (Federal Intelligence Service) is already barred from snooping on German citizens’ internet data abroad but the new ruling means that German spies will only be able to monitor foreign nationals abroad if there is evidence of a threat

“We protect journalists so that they can go about their work, and doing work means that the sources, the informants that they have, can turn to them with confidence,” he said. “With the lawsuit against the BND law, we want to strengthen the protection of sources and informants in the digital realm.”

Responding to the ruling, BND chief Bruno Kahl said: “What is new is that fundamental rights apply internationally, which the court has ruled on for the first time.”

Digital and human rights organizations are hailing this ruling as a major victory. From Reporters Without Borders:

The court ruled that the BND law disregards both the freedom of the press guaranteed in article 5 and the freedom of telecommunications guaranteed in Article 10 of the Basic Law as it does not recognise that foreign surveillance must be conducted in conformity with the Basic Law. When revising the BND law, the legislature will have to take into account that foreign surveillance without cause is only possible in very few cases. Vulnerable groups of persons such as journalists must be granted special protection. Tighter criteria must also apply to the targeted surveillance of individuals. Furthermore, international surveillance must be controlled much more effectively by independent bodies with their own budgetary sovereignty. The ruling thus sets new standards in international human rights protection and for freedom of the press.

“The Federal Constitutional Court has once again underlined the importance of press freedom, said Christian Mihr, Executive Director of RSF Germany. We are delighted that Karlsruhe is putting a stop to the escalating surveillance practices of the Federal Intelligence Service abroad”, Mihr added.

The Electronic Frontier Foundation (EFF) also weighed in on the verdict:

Victories in Germany and South African may seem like a step in the right direction toward pressuring the United States judicial system to make similar decisions, but state secrecy remains a major hurdle. In the United States, our lawsuit against NSA mass surveillance is being held up by the government argument that it cannot submit into evidence any of the requisite documents necessary to adjudicate the case. In Germany, both the BND Act and its sibling, the G10 Act, as well as their technological underpinnings, are both openly discussed making it easier to confront their legality.

The German government now has until the end of 2021 to amend the BND Act to make it compliant with the court’s ruling.

EFF wishes our hearty congratulations to the lawyers, activists, journalists, and concerned citizens that worked very hard to bring this case before the court. We hope that this victory is just one of many we are—and will be—celebrating as we continue to fight together to dismantle global mass surveillance.

These developments are certainly steps in the right direction. Mass surveillance of citizens has been a long-standing civil rights black eye for people living in the so-called “free world”. It basically signals to the world that constitutional rights guarding against unreasonable search and seizure is no longer observed and that everyone is being spied on without any reasonable oversight. This type of system has inspired some to say, “1984 is not an instruction manual.”

So, these developments will no doubt be exciting because it means that the global surveillance network is finally showing signs of weakness. Many people knew that the legality of all of this was, at best, dubious, but now we are seeing court rulings that are confirming what some had suspected all along. That suspicion is that mass surveillance without suspicion is illegal. No doubt many digital rights minded observers are hoping that these rulings are a trend that will continue for other countries as well.

Drew Wilson on Twitter: @icecube85 and Facebook.



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