Germany’s Federal Court of Justice (Bundesgerichtshof), the highest court in the country, has ruled that parts of a 2016 law that allowed monitoring of the internet activity of foreign targets outside of Germany are unconstitutional. This landmark ruling will force the Merkel government to update laws governing Germany’s foreign intelligence agency: The BND. Essentially, the ruling clarifies that non-Germans also enjoy constitutional protections under Germany’s Constitution. Specifically, the court ruled that non-Germans also have a right to privacy in communication and that right is in fact universal.
The laws governing the BND will be rewritten such that the BND needs to provide a justification for spying on the internet activity of foreign individuals. The court has ruled that these laws need to be rewritten and reimplemented by the end of 2021. However, the ruling does not ban that practice outright. Before the court’s intervention, the BND was allowed to gather such internet activity, evaluate it and even share it with other countries – for instance the countries where the foreign target resided. The Court stated:
“In particular, the monitoring is not based on sufficient objectives and structured in such a way that they are controllable; there is also a lack of various safeguards, for example to protect journalists or lawyers.”
Germany’s foreign intelligence agency must abide by the constitutionThis case was brought before the court by foreign journalists, various organizations within Germany and also the global NGO Reporters Without Borders. One of the German non profits from the suit, the Society for Civil Rights, told the New York Times:
“The ruling sets new standards in international human rights protection and for the freedom of the press.”
Bijan Moini, a lawyer that represented Reporters Without Borders in the landmark case also commented on how important it is that a foreign intelligence agency now needs to act constitutionally:
“Today’s verdict finally incorporates the BND into the German Constitution. The court sets far-reaching guidelines on how far and deep the service may monitor, how vulnerable groups of people must be protected and independent control must be strengthened.”Christian Mihr, Director of the Germany arm of Reporters Without Borders also stated to DW:
“The German Constitutional Court has once again underlined the importance of press freedom. We are pleased that (the court) has put a stop to the sprawling surveillance activity of the BND abroad.”
Meanwhile, the United States doesn’t respect internet privacy of even its citizensMeanwhile, across the pond in Washington D.C., the United States is nowhere near such a constitutional reckoning for the massive privacy violations undertaken by the NSA on citizens, let alone foreign individuals. In fact, Congress is set to vote on the USA FREEDOM Reauthorization Act of 2020 which would renew the Patriot Act and explicitly allow domestic internet activity to be gathered without a warrant. Nevertheless, this internet privacy victory in Germany should serve as a beacon of hope that the rule of law is not just an illusion and that heinous government practices can be curtailed.
Featured image by Steffen Prößdorf shared via CC BY-SA 4.0 License.