German Constitutional Court Says Unjustified Surveillance Of Foreign Citizens Is Illegal

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


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  • identicon
    Anonymous Coward, 28 May 2020 @ 3:22am

    Am I just super tired or did a court just blanket rule that "warrentless" (quotes because I am not sure if the exact term/steps apply to germany) surveillance is illegal (that seems.... too sane so I must be too tired to read).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2020 @ 4:02am

    Yes, unjustified surveillance....

    How is that actually part of the internet structure? I don't see how any of it is actually unjustified.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2020 @ 6:03am

    Re: Airtel Lottery

    this is where we get the surveillance? do they honor coupons?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2020 @ 6:04am

    "Unjustified surveillance is illegal" is somehow, sadly, not a simple truism. (Like "inappropriate attire is accepted nowhere".)

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 28 May 2020 @ 8:34am

    Fun Fact

    The federal statute that criminalizes violations of civil, statutory and constitutional rights by government officials in the USA does not have a territorial limit - by the letter of the law, if a US official does something that would violate rights to anyone anywhere, they have committed a federal crime.

    The conspiracy version includes wording that makes it only apply within US borders, but the individual version of the law places no such limits on enforcement.

    https://www.justice.gov/crt/deprivation-rights-under-color-law

    reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 28 May 2020 @ 8:46am

    Application Denied

    This is going to be quite the setback if Germany wanted to join the Five Eyes intelligence group. Countries may be prevented by law from spying on their own citizens, but if other countries spy on their behalf and then report back, then the spy agencies have a deal. Except that this court ruling now renders Germany useless to a cross-border spy network.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 29 May 2020 @ 6:45am

      Re: Application Denied

      " Countries may be prevented by law from spying on their own citizens, but if other countries spy on their behalf and then report back, then the spy agencies have a deal."

      I recall that causing loud outcries in a number of EU states. Not that it led to much, except that in some cases national intelligence agencies were legislatively crippled so they couldn't deliver intel of the citizenry to foreign powers. Sadly, not enough of those cases.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2020 @ 9:06am

    i wonder how long it will continue to observe that domestic surveillance is against their constitution? for many years to come, i hope! if it's anything like here, where we're NOT supposed to be under surveillance because of our Constitutional rights, it will be changed, just like here. our Constitution isn't worth much now. the security services and the courts have seen to that, all but totally disbanding it. they have taken away almost all of the very meanings of and reasons it was made our CONSTITUTION in the first place, giving them far more importance than us, THE PEOPLE!!

    reply to this | link to this | view in chronology ]

  • identicon
    Adam, 1 Jun 2020 @ 10:06am

    As much as they try to justify it all with security issues, I think this is the right decision. After all, this simply violates the rights of so many people. I read about this topic on Sujit Choudhry Twitter recently https://twitter.com/sujit_choudhry?lang=en which frequently notifies constitutional law questions

    reply to this | link to this | view in chronology ]


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