German Constitutional Court Says Unjustified Surveillance Of Foreign Citizens Is Illegal

Legal Issues

from the when-it's-up-to-domestic-courts-to-give-AF-about-non-citizens dept

The German government pretended to be bothered by the NSA’s spying when the Snowden leaks began, claiming surveillance of overseas allies was somehow a bit too much. It had nothing to say about its own spying, which was roughly aligned with the NSA’s “collect it all” attitude. This could be chalked up to “Five Eyes” envy, perhaps. The NSA works with four other countries to hoover up massive amounts of data directly from internet fire hoses located around the world, but Germany has never made the cut.

While the German PM made a lot of noise about being surveilled, Germany’s intelligence agencies continued to perform both domestic and foreign surveillance, resulting in legal challenges to the country’s surveillance programs. The German Constitution restricts domestic surveillance but doesn’t have nearly as much to say about subjecting foreigners to intrusive snooping. Foreigners are usually considered fair game — non-recipients of protections given to citizens of whatever country does the spying.

One legal challenge dead-ended when a German court decided a service provider couldn’t sue on behalf of its spied-upon users. But others continued, and there’s good news to report.

The German government must come up with a new law regulating its secret services, after the country’s highest court ruled that the current practice of monitoring telecommunications of foreign citizens at will violates constitutionally-enshrined press freedoms and the privacy of communications.

The ruling said that non-Germans were also protected by Germany’s constitutional rights, and that the current law lacked special protection for the work of lawyers and journalists. This applied both to the collection and processing of data as well as passing on that data to other intelligence agencies.

The recognition of the extension of domestic rights to foreign citizens is the end result of a lawsuit filed by journalists against the German government. The lawsuit alleged BND’s all-encompassing spying made targets out of everyone, including those normally protected by their own countries’ laws preventing the surveillance of protected speech.

The German government argued that foreigners are not protected by anything — not even the rights granted to them by their governments. The Constitutional Court disagreed, finding that allowing the BND (Germany’s NSA equivalent) cannot be allowed to unilaterally decide who could be targeted by its surveillance programs. Current “best practices” allow the BND to roll up on the nearest internet trunk to collect everything: communications routed through a Frankfurt interchange that handles data flowing from France, Russia, and the Middle East.

If the government wishes to continue hoovering up everything flowing through Frankfurt (and internet exchanges elsewhere in the country), it will need to to codify the process with some guardrails in place — guidelines that will hopefully include some respect for the rights of foreign citizens, including journalists, activists, and lawyers who generally cannot be targeted by their own countries.

Now, all everyone has to do is wait. The German government has until 2021 to amend the law. Presumably, the BND will do whatever it can to appeal this decision that extends domestic rights to foreigners. And it will likely delay any modifications as long as possible to allow for maximum snoopage. Bureaucratic delays aside, this ruling sends a message: the stuff that was considered just normal stuff for maximum national security is no longer acceptable. The judicial system in Germany is unwilling to sacrifice foreigners’ rights for the surveillance whims of an agency that hasn’t shown a compelling reason why it should have access to everything people from other countries talk about.

Filed Under: bnd, collect it all, foreign citizens, germany, surveillance