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Q&A: A Big Step for Global Privacy Rights

Two people stand with a grey octopus cutout balancing mobile phones
The chair of the Society for Freedom Rights (right) and the managing director of Reporters Without Borders (left) stand with a symbolic octopus that is meant to represent one of Germany’s intelligence agencies, at the Federal Constitutional Court in Karlsruhe, Germany, on January 14, 2020. © Ronald Wittek/EPA-EFE/Shutterstock

During the spring of 2020, the German Federal Constitutional Court ruled that the German foreign intelligence agency, the Bundesnachrichtendienst (BND), could not conduct unrestricted mass surveillance of telecommunications outside of Germany. The Open Society Foundations’ Vera Franz spoke to Malte Spitz, of the Gesellschaft für Freiheitsrechte, a German-based organization that defends human rights through litigation, about the landmark ruling.

What role did your organization play in bringing the case?

Gesellschaft für Freiheitsrechte initiated this case and worked with a coalition of media and activist organizations including investigative journalists and human rights lawyers from all over the world as plaintiffs. We filed a constitutional complaint against the BND Act as it allows for dragnet collection and storage of telecommunications data. 

Why is this ruling historic?

This a major victory with far-ranging implications. It is especially important for those that live and work in Europe, but it really could impact nearly everyone online. 

The court found that the German Constitution protects the privacy rights of all—Germans and non-Germans alike. These rights, the court found, are fundamental to people, irrespective of nationality. And it ruled that the BND could not continue to operate a broad surveillance program of non-Germans.

These rights apply, the court also found, regardless of whether surveillance is conducted from within Germany or from abroad. This is the first time that the Constitutional Court ruled in such a clear manner on this issue.

What are the practical consequences of this ruling?

The ruling prevents the BND from collecting telecommunications data from non-Germans located outside of Germany in an indiscriminate way. In others words, the ruling requires the BND to explain to an oversight body who it is surveilling, and why. In general, this should lead the BND—which collaborates closely with other intelligence services internationally—to collect and share less data.

For example, the ruling will impact the way that the BND collaborates with the U.S. National Security Agency, which has been a prime consumer of data collected by the BND. This collaboration was a key source of concern to privacy advocates, since it was predicated on a vague authorization that allowed the BND to spy on people’s phone and internet use for “foreign policy and security” reasons. This ruling considerably reigns in this general practice.

Why should ordinary citizens in Germany care?

These mass data sweeps challenge the integrity and health of a free and functioning press. That affects us all, both as individuals and as nations, because we all have an interest in a free press.

We cannot expect other nations to respect our right to privacy when we aren’t respecting their nationals’ rights in return. This ruling may one day be regarded as a first step toward respecting each other’s rights irrespective of nationality and location. Other nations’ courts could look at our court’s ruling and agree with it.

More immediate will be the effects on the people most affected by surveillance. A leading argument against mass data collection by foreign intelligence services is that it may provide governments with access to communications between journalists and their sources. If would-be whistleblowers, and others with information in the public interest, are aware of this sort of surveillance, they will be less likely to come forward.

Do you believe the German court ruling will influence surveillance practices of other countries? 

Victories in Germany and elsewhere may be a step in the right direction; but in other countries, governments use state secrecy provisions to shield themselves. 

In the United States, lawsuits against NSA mass surveillance are being held up by the government’s 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. But we expect our court’s ruling to have influence on courts in other EU countries.

Gesellschaft für Freiheitsrechte is a grantee of the Open Society Foundations.

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