Judgment of the Federal Constitutional Court on the international-foreign telecommunications investigation of the Federal Intelligence Service

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Foreign-to-foreign telecommunications intelligence by the BND
Logo of the Federal Constitutional Court on its decisions
Judgment announced
May 19, 2020
Case designation: Legal Constitutional Complaint
Business sign: 1 BvR 2835/17
Guiding principles (abbreviated)
1. The binding of the German state power to the fundamental rights according to Art. 1 Abs. 3 GG is not limited to the German state territory.
2. The regulations on international-foreign telecommunications surveillance violate the citation requirement of Article 19.1 sentence 2 of the Basic Law.
3. The regulation of foreign intelligence falls under foreign affairs within the meaning of Article 73.1 no. 1 of the Basic Law.
4. Persons who claim that their own fundamental rights have been violated are not excluded from the protection of fundamental rights under the Basic Law because they are acting as functionaries of a foreign legal person.
5. The strategic international telecommunications surveillance is not fundamentally incompatible with Article 10, Paragraph 1 of the Basic Law.
6. The transfer of personal data from strategic surveillance is only permitted to protect particularly important legal interests.
7. Regulations on cooperation with foreign intelligence services only meet basic legal requirements if they ensure that the constitutional boundaries are not overridden by mutual exchange.
8. The powers for strategic monitoring, for the transmission of the knowledge gained with it and for the related cooperation with foreign services are only compatible with the requirements of proportionality if they are accompanied by an independent objective legal control.
Judge
Stephan Harbarth , Johannes Masing , Andreas Paulus , Susanne Baer , Gabriele Britz , Yvonne Ott , Josef Christ , Henning Radtke
dissenting opinions
no
Applied Law
Art. 5 ; Art. 10 Basic Law

With the ruling of the Federal Constitutional Court on the international-foreign telecommunications investigation of the Federal Intelligence Service of May 19, 2020, the Federal Constitutional Court determined that the surveillance of telecommunications by foreigners abroad by the Federal Intelligence Service - be it from Germany or abroad - is in compliance with the fundamental rights of the Basic Law is bound and according to the design in the BND law in the version of the law on foreign-international telecommunications intelligence of December 23, 2016 against the fundamental right of telecommunications secrecy ( Art. 10 para. 1 GG) and freedom of the press ( Art. 5 para. 1 sentence 2 GG). In particular, the binding of German state power to the fundamental rights according to Article 1, Paragraph 3 of the Basic Law is not limited to the German state territory. The legislature, on the other hand, based on the preamble of the Basic Law , assumed that the fundamental rights would be restricted to German territory and the German national people, and therefore inapplicable to foreigners abroad.

According to the Federal Constitutional Court, however, a constitutional design of the legal basis for international-international telecommunications intelligence (also: "international-foreign telecommunications surveillance") is possible. The legislature issued a new regulation taking into account the basic rights requirements. However, the provisions declared incompatible with the Basic Law continue to apply until December 31, 2021.

facts

Complainant

The complainants were the France-based non - governmental organization Reporters sans frontières , which works internationally for the freedom of the press and the security of journalists from reprisals, six investigative and reporting journalists living in Germany, the United Kingdom, Slovenia, Mexico and North Macedonia with foreigners Citizenship reporting about human rights violations in crisis areas or authoritarian states abroad and a German lawyer residing in Guatemala who works for a human rights office there and for the International Legal Commission based in Geneva. All complainants stated that, as part of their respective activities, they maintain special confidentiality relationships with people who could come into the focus of an international-international telecommunications investigation by the Federal Intelligence Service, since their activities consistently relate to topics and areas that of foreign and security policy importance for the Federal Republic of Germany.

The authorized representatives of the complainants were Matthias Bäcker and Bijan Moini .

Complaint content

The constitutional complaint was directed in detail against the legal powers of the BND for strategic telecommunications surveillance without cause, which aims solely at the surveillance of telecommunications traffic of foreigners located abroad, i. H. to collect, store and evaluate general knowledge of foreign and security policy interest for the Federal Republic, which is not linked to specific causes or suspicious facts, also against the transmission of this data to domestic and foreign authorities (especially police and public prosecutors) as well as the Powers that allow the BND to cooperate with foreign intelligence services .

The relevant events arise from a secret job profile of the federal government ( Section 6 (1) sentence 1 no. 3 BNDG). The technical and practical details of the entire collection and evaluation process, the cooperation and the data transfer are regulated by non-public service regulations ( Section 6 (7) BNDG). An order from the Federal Chancellery determines the telecommunications networks from which data are to be sent to the BND ( Section 6 (1) sentence 2 BNDG). The BND, in turn, uses a six-digit number of search terms to select the content data of around 270,000 telecommunications processes (e-mail, telephone calls, chat messages) from the supplied data volume and saves them for further manual evaluation. The cooperation with foreign public bodies, in particular their goals and content, are defined in advance by written agreement ( Section 13 BNDG). The independent body ( Section 16 BNDG) is a special control body in Germany .

Procedure

The oral hearing took place on January 14th and 15th, 2020. In addition to the complainants, the Federal Government , the Federal Intelligence Service, the Parliamentary Control Committee , the G10 Commission and the Federal Commissioner for Data Protection and Freedom of Information have expressed their views. The former IT security officer of the federal government, Martin Schallbruch, testified as an expert . The former chairwoman of the independent body judge at the Federal Court of Justice Gabriele Cirener , the eco - Association of the Internet Industry , T-Systems International GmbH and the Chaos Computer Club were heard as expert third parties .

In the run-up to the oral hearing, the court had also obtained written statements on the technical conditions of international telecommunications networks as well as on the possibilities and dimensions of the intelligence work of the Federal Intelligence Service.

judgment

The Federal Constitutional Court ruled that Sections 6, 7, 13 to 15 of the Federal Intelligence Service Act in the version of the Foreign-Abroad Telecommunications Enforcement Act of December 23, 2016 ( Federal Law Gazette I p. 3346 ), also in the Version of 30 June 2017 ( Federal Law Gazette I p. 2097 ) are incompatible with Article 10 paragraph 1 of the Basic Law and Article 5 paragraph 1 sentence 2 of the Basic Law.

Section 19 subsection 1, section 24 subsection 1 sentence 1, subsection 2 sentence 1, subsection 3 of the BND Act are incompatible with Article 10 (1) of the Basic Law and Article 5 (1) sentence 2 of the Basic Law insofar as they are used to process im Authorize personal data collected in connection with strategic telecommunications intelligence in accordance with Sections 6, 7, 13 to 15 of the BND Act .

The legislature was instructed to create a new constitutional regulation by December 31, 2021. Until then, the provisions declared incompatible with the Basic Law continue to apply.

Guiding principles

The Federal Constitutional Court stated the following in its guiding principles on the judgment:

  1. The binding of the German state power to the fundamental rights is not limited to the German state territory .
  2. The quotation requirement was violated.
  3. The function holder theory is unconstitutional.
  4. The regulation of foreign intelligence falls under foreign affairs within the meaning of Article 73.1 No. 1 of the Basic Law.
  5. The strategic international telecommunications surveillance is in principle compatible with Article 10, Paragraph 1 of the Basic Law.
  6. The transmission of personal data from strategic monitoring is only permitted to protect particularly important legal interests .
  7. Regulations on cooperation with foreign intelligence services only meet basic legal requirements if they ensure that the constitutional boundaries are not obscured by the mutual exchange.
  8. The powers to strategically monitor, to transfer the knowledge gained with it and to cooperate with foreign services in this regard are only compatible with the requirements of proportionality if they are accompanied by an independent objective legal control.

Protection of fundamental rights for foreigners abroad

Restrictive requirements that the legislator's fundamental rights in accordance with Making Art. 1 (3) GG dependent on a territorial reference to the federal territory or the exercise of specific sovereign powers can neither be inferred from the provision itself nor from its history or systematic embedding. Insofar as the Basic Law guarantees the fundamental rights not as German but as human rights, it is consistent that they also apply to foreigners abroad in relation to the German state authority. This applies in any case to the protection against surveillance measures by Article 10, Paragraph 1 and Article 5, Paragraph 1, Sentence 2 of the Basic Law in their defense dimension against international telecommunications intelligence by the Federal Intelligence Service. However, the personal and factual area of ​​protection , the fundamental rights functions as defense or performance rights, constitutional value decisions or the basis of protection obligations as well as the requirements for the justification of encroachments on fundamental rights may differ in the context of proportionality at home and abroad.

Requirements for the strategic telecommunications surveillance of foreigners abroad

The legislative authority of the federal government for foreign-international telecommunications intelligence can be based on the legislative competence of "foreign affairs" according to Article 73.1 No. 1 of the Basic Law.

Data collection

Unprecedented strategic surveillance, which does not serve to identify dangers early, but rather to provide the Federal Government with political information and to prepare its foreign and security policy decisions, is constitutionally justified as a specific authority for foreign intelligence only under certain conditions.

  1. The legislature must first stipulate restrictive measures on the volume of the data to be exported for the respective transmission routes and ensure that the geographical area covered by the monitoring remains limited.
  2. The domestic communication and, if necessary, the communication in which Germans or residents are involved on at least one side, must be filtered out as best as possible before a manual evaluation according to the state of science and technology.
  3. The monitoring purposes must be specified in a sufficiently precise and standardized manner.
  4. Procedural regulations must structure the alignment of the monitoring to the respective specific purposes and thus also make it controllable.
  5. A storage period of six months must not be exceeded.
  6. The law must specify in its final form the reasons and aspects under which strategic surveillance measures may be targeted at certain people.
  7. Targeted monitoring of lawyers or journalists whose communication requires increased confidentiality must be linked to qualified intervention thresholds.
  8. Findings from the highly personal area of ​​life may not be used and must be deleted immediately.
  9. The data deletion must be recorded.

Data transfer

Since the BND has no police powers and the domestic police authorities are not authorized to collect data without a reason, personal data that are suitable for the performance of operational tasks may only be passed on to domestic bodies that could collect the transmitted data themselves with comparably serious means, for example in the context of telecommunications surveillance or online searches ( hypothetical new data collection ). If a person affected by the transfer to a foreign body could be specifically endangered as a result, a case-by-case examination relating to the individual reason for the transfer is required.

Independent control

Since the foreign persons affected abroad are not notified of the secret data collection and there are therefore no legal protection options for them, the activities of the BND must at least be subject to judicial-like control by an institutionally independent body with final decision-making powers.

rating

For the first time, the Federal Constitutional Court ruled that German authorities must also observe fundamental rights abroad . The international-international telecommunications intelligence was declared to be fundamentally permissible. There is also an overriding public interest in unprovoked telecommunications monitoring abroad, which, however, must be designed taking into account the principle of proportionality .

Web links

Individual evidence

  1. ↑ Foreign-foreign telecommunications intelligence according to the BND Act violates fundamental rights of the Basic Law in its current form . Press release of the Federal Constitutional Court No. 37/2020 of May 19, 2020
  2. ↑ a b Gigi Deppe: Judgment on the BND law: wiretapping allowed - within narrower limits. In: Tagesschau.de . Norddeutscher Rundfunk , May 19, 2020, accessed on May 19, 2020 .
  3. ^ Judgment of the First Senate: 1 BvR 2835/17. Federal Constitutional Court, May 19, 2020, accessed on May 19, 2020 (Rn. 34 ff.).
  4. ^ Announcement of the verdict in the matter of "Strategic foreign-foreign telecommunications intelligence by the Federal Intelligence Service". BVerfG, accessed on May 7, 2020 .
  5. ^ Judgment of the First Senate: 1 BvR 2835/17. Federal Constitutional Court, May 19, 2020, accessed on May 19, 2020 (Rn. 54 f.).
  6. ↑ cf. already BVerfG, judgment of April 24, 2013 - 1 BvR 1215/07 marginal no. 123 ( Counter Terrorism File )
  7. ↑ still left open in BVerfG, judgment of 14 July 1999 - 1 BvR 2226/94 et al. ( G10 law )
  8. ↑ Patrick Beuth: Judgment of the Federal Constitutional Court Internet monitoring of the BND is unconstitutional in its current form. In: Spiegel Online . May 19, 2020, accessed May 19, 2020 .
  9. ↑ Reinhard Müller: BND abroad: wiretapping within limits. In: Frankfurter Allgemeine Zeitung . May 19, 2020, accessed May 19, 2020 .