Law on the international-international telecommunications intelligence of the Federal Intelligence Service

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Basic data
Title: Law on the international-international telecommunications intelligence of the Federal Intelligence Service
Abbreviation: AFABNDG (not official)
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Constitutional law , intelligence law
Issued on: December 23, 2016
( Federal Law Gazette I p. 3346 )
Entry into force on: December 31, 2016
GESTA : B074
Weblink: Text of the law
Please note the note on the applicable legal version.

The Federal Intelligence Service ( AFABNDG ) law on international-international telecommunications intelligence of December 23, 2016 is a German article law , which amends the BND law ( BNDG ) extensively, the telecommunications law ( TKG ) and other laws. With it, the legal basis for the foreign- foreign telecommunications intelligence of the Federal Intelligence Service (BND) was specified and new control rights were introduced. The Independent Committee was created for this purpose. The law also contains a permit to republish the BND law.

On May 19, 2020, the Federal Constitutional Court declared the amendments to the BND Act made by this law largely unconstitutional , as they violated the secrecy of telecommunications under fundamental rights ( Article 10 (1) of the Basic Law ) and freedom of the press ( Article 5 (1), second sentence GG) violates.

structure

The law is structured as follows:

  • Article 1 Amendment of the BND Act
  • Article 2 Amendment of the Telecommunications Act
  • Article 3 consequential changes
  • Article 4 Authorization to publish
  • Article 5 Entry into force

content

A “ Section 2 Abroad-Abroad Telecommunications Reconnaissance ” was inserted into the BND Act, which includes Sections 6 to 18. In the Telecommunications Act, Section 110 (1) and Section 114 (2) sentence 1 have been adjusted. The consequential amendments concerned among other things, security clearance , the intelligence transmission regulation , the Article 10 law , the AZR-law , the Code of Criminal Procedure and the Satellite Data Security Act . These were necessary because paragraphs of the BND law were renumbered. Technical details were also regulated in a service regulation.

The law essentially comprises order procedures for foreign-foreign telecommunications intelligence. In contrast to G 10 measures , the issuing body should not be the Federal Ministry of the Interior, Building and Home Affairs, but the Federal Chancellery , as the BND alone is affected. The law has created an independent body with control rights for international-international telecommunications intelligence. Since the use of telecommunication features by EU citizens is only permitted under special conditions, these are protected by the law. The law allows the storage of traffic data for the (preventive) detection of new threats for up to six months. The possibility of the automated transmission of information to foreign bodies and the joint data storage with them has strengthened international cooperation in the area of ​​terrorism intelligence, among other things.

background

The statutory mandate of the Federal Intelligence Service (BND) is to gain knowledge about foreign countries that are of importance to the Federal Republic of Germany in terms of foreign and security policy ( Section 1 (2) sentence 1 BNDG). A key instrument for fulfilling this mandate is the strategic telecommunications reconnaissance of foreigners abroad from within Germany (so-called "international-foreign telecommunications reconnaissance"). Through this, the BND can obtain current and authentic information without delay and thus gain particularly important order-relevant knowledge from international data streams. In terms of content, the focus is on strategic, that is, on international and higher-level issues relevant to the security and foreign policy of the Federal Republic of Germany , such as international terrorism , the proliferation of weapons of mass destruction and delivery systems , international organized crime and the development of the political situation in certain countries.

Before this law, the BND relied on Section 1 (2) sentence 1 of the BNDG when carrying out international-foreign telecommunications intelligence. As a consequence of the legal-political debate in 2016, in the interests of legal security , also for the employees of the BND entrusted with the task of strategic telecommunications intelligence, the existing legal situation and special legal bases for international-international telecommunications intelligence and related cooperation with foreign ones should be clarified Intelligence services are created. The common data storage with these should also be placed on a special legal basis .

Legislative process

The law has gone through the German legislative process. The legislative initiative came from the faction of the CDU / CDU and the SPD faction . An identical draft law of the Federal Government of August 12, 2016, the justification and statement of the National Regulatory Control Council by the Federal Government to the then President of the Federal Council , Stanislaw Tillich , and for whom the particular urgency ( Art. 76 para. 2 sentence 4 GG ) was later discarded.

At the first reading in the German Bundestag, the draft was referred to the Interior Committee , the Legal Affairs Committee , the Defense Committee and the Budget Committee . The lead Interior Committee held a public hearing on the draft law at its 89th meeting on September 26, 2016, in which six experts participated. Comments on the draft law were given by Klaus Ferdinand Gärditz from the University of Bonn , Kurt Graulich , a judge at the Federal Administrative Court . D., Thorsten Wetzling from the New Responsibility Foundation , the then BND President Gerhard Schindler , Eric Töpfer from the Institute for Human Rights, Heinrich Amadeus Wolff from the University of Bayreuth , Matthias Bäcker from the Karlsruhe Institute of Technology , the broadcasters and media associations together, Andrea Voßhoff as Federal Commissioner for Data Protection and Freedom of Information , the Parliamentary Advisory Council on Sustainable Development and Bertold Huber , Deputy Chairman of the G 10 Commission .

On October 19, 2016, the lead interior committee recommended against the votes of the parliamentary groups Die Linke and Bündnis 90 / Die Grünen that the bill be adopted unchanged. In the debate on the draft law in the second reading in the plenary session of the Bundestag on October 21, 2016, for which 38 minutes were allotted, the speakers were Nina Warken ( CDU ), Martina Renner (Die Linke), Christian Flisek ( SPD ), Konstantin von Notz ( Bündnis 90 / Die Grünen), Clemens Binninger (CDU) and Andrea Lindholz (CDU / CSU). In the third reading that followed immediately, the draft, in the version of the resolution recommended by the Interior Committee, was adopted with the votes of the coalition groups against the votes of the opposition and two votes against from the SPD. In its 950th meeting on November 4, 2016, the Federal Council decided not to call the Mediation Committee .

The Act of 23 December 2016 (adoption date) was the then German president , Joachim Gauck , issued by the German Chancellor , Angela Merkel and Federal Minister for Special Affairs , Peter Altmaier , countersigned and December 30, 2016 Federal Law Gazette announced. It came into force the following day.

The MP Tankred Schipanski (CDU / CSU) made a statement on the draft law in accordance with Section 31 of the Rules of Procedure of the German Bundestag . In it he stated that the amendment to the law was not related to the findings of the 1st Committee of Inquiry ("NSA") of the 18th electoral term . During its work, the committee of inquiry found that the current general assignments of tasks ( Section 1 (2) BNDG) and the general powers ( Section 1 (1) BNDG) represent a suitable legal basis for the “international-international telecommunications investigation ”. Also, no illegal behavior by the Federal Intelligence Service with regard to this authorization norm or in the case of the "international-foreign telecommunications intelligence" has been found. The amendments tabled with regard to the legal basis were based solely on the wishes of individual practitioners who had asked for their powers to be specified in more detail. The legislature is complying with this request with the amendment. In particular, it serves to continue to support the intelligence services in their already extremely reliable and extremely important work, which is of utmost importance for the security of the population in Germany and Europe in view of the diverse terrorist threats.

At the same time as the law, the law on the further development of parliamentary control of the federal intelligence services was discussed and passed, which came into force on December 7, 2016.

Individual evidence

  1. ^ Judgment of the First Senate: 1 BvR 2835/17. Federal Constitutional Court, May 19, 2020, accessed on May 19, 2020 .
  2. ↑ a b c d draft law of the parliamentary groups of the CDU / CSU and SPD - draft of a law on foreign-foreign telecommunications intelligence by the Federal Intelligence Service (printed matter 18/9041). (PDF) 18th  German Bundestag , July 5, 2016, accessed on November 13, 2019 .
  3. ↑ Draft law of the federal government Draft of a law on international-foreign telecommunications intelligence of the Federal Intelligence Service (Drucksache 18/9529). (PDF) 18th  German Bundestag , September 5, 2016, accessed on November 13, 2019 .
  4. ^ Stenographic report, 190th session (minutes of plenary 18/190). 18th  German Bundestag , September 22, 2016, accessed on November 13, 2019 (p. 18795).
  5. ↑ Public hearing before the Interior Committee. 18th  German Bundestag , September 26, 2016, accessed on November 13, 2019 (individual statements and the minutes of the hearing can be accessed ).
  6. ↑ Recommendation for a resolution and report by the Interior Committee (4th committee; printed matter 18/10068). 18th  German Bundestag , October 19, 2016, accessed on November 13, 2019 .
  7. ↑ a b Shorthand report of the 197th meeting (minutes of the plenary session 18/197). 18th  German Bundestag , October 21, 2016, accessed on November 13, 2019 (p. 19624 ff.).
  8. ↑ Decision of the Federal Council (printed matter 623/16). Federal Council , November 4, 2016, accessed on November 13, 2019 .
  9. ↑ Basic information about the process - law for the further development of parliamentary control of the federal intelligence services. 18th  German Bundestag , accessed on November 13, 2019 .