The German Federal Court of Justice has ruled that intelligence agencies do not have the right to spy on telecommunications by foreign citizens en masse. The ruling, in response to a lawsuit filed by several groups of journalists after a Reporter Without Borders dossier. Journalists collaborated with the German civil rights society and argue in their case that the existing law did not prevent espionage agencies from spying on journalists' communications as they please. This could potentially allow intelligence agencies to identify the sources that journalists use in their work and even share that information with intelligence agencies from other countries in order to target the sources.
The German foreign intelligence agency, the Federal Intelligence Service or BND, has the opportunity to have access to a large volume of telecommunications data and content. This is because Germany is home to some of the world's most active and largest internet exchange points. The country's vast telecommunications infrastructure includes the so-called DE-CIX exchange in Frankfurt, believed to be the second busiest Internet node in the world. DE-CIX Internet exchange alone is believed to bring over a trillion messages a day to and from Western Europe, Russia, the Middle East and North Africa.
The BND, as is known, is not authorized to spy on communications from German citizens. However, according to German media, the agency believes that Internet messages between foreigners, which pass through German exchanges, can be intercepted and analyzed.
This is because, according to the BND, foreign citizens are not covered by the German legislature, which means that their communications do not have privacy protections, as foreseen for national citizens.
But this hypothesis was rejected on Tuesday by the Federal Court of Justice, which is Germany's highest court. The court ruled that telecommunication surveillance for foreigners is also subject to Article 10 of Germany's Basic Law on the Right to Privacy. In other words, the law also protects the telecommunications of foreigners, according to the court, which means that surveillance of foreign communications should only be done in a targeted way, in response to specific cases or specific people. The court contested the mass surveillance model - as opposed to targeted surveillance - of the BND's data collection and claimed that the espionage agency's activities require tighter control, especially in relation to communications from journalists and lawyers. . Finally, the court agreed with the plaintiffs that the constitutional guarantees against the BND's ability to share its intercepted data with foreign espionage agencies were insufficient.
In its ruling, the court gave the German government a deadline, December 2021, to propose a new law regulating the telecommunications surveillance of foreigners, to bring the matter into line with the German Constitution.