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 sentence, in response to a lawsuit brought by several groups of journalists after a dossier by Reporters Without Borders. The journalists have collaborated with the German civil rights society and argue in their case that the existing law has not prevented the spy agencies from spying on communications between journalists as they please. This could potentially allow intelligence agencies to identify the sources journalists use in their work and even share that information with intelligence agencies in other countries in order to target the sources.
The German foreign intelligence agency, the Federal Intelligence Service or BND, has the ability to have access to a large volume of telecommunications data and content. This is because Germany is home to some of the busiest and highest capacity internet exchange points in the world. 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. The DE-CIX internet exchange alone is believed to carry over a trillion messages a day to and from Western Europe, Russia, the Middle East and North Africa.
The BND, as is well known, is not authorized to spy on the communications of 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 the highest court in Germany. The court ruled that telecommunication surveillance also for foreigners is 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 carried out in a targeted manner, in response to specific cases or specific people. The court challenged the mass surveillance model - as opposed to targeted surveillance - of the BND's data collection and said that the activities of the spy agency require tighter scrutiny, especially in relation to communications from journalists and lawyers. . Finally, the court agreed with the plaintiffs that constitutional guarantees against the BND's ability to share its intercepted data with foreign spy agencies were insufficient.
In its ruling, the court gave the German government a deadline, December 2021, to propose a new law regulating the telecommunication surveillance of foreigners, to bring the matter into line with the German Constitution.