A good two weeks before a possibly pioneering hearing before the Federal Constitutional Court for the Federal Intelligence Service (BND), the tension is growing. Internet and media representatives want to better protect journalists from eavesdropping during international investigations and warn against what they consider to be global mass surveillance by the German intelligence agency. The former federal administrative judge and former NSA special investigator Kurt Graulich, however, warns against impairing the ability of the BND to work.
Intelligence service is "self-defense of the Federal Republic"
The BND is gaining essential knowledge about the threat situation, for example for Bundeswehr soldiers abroad, through the technical reconnaissance of, for example, communication in social media via the Internet. According to the law, he may eavesdrop on foreigners abroad with restrictions. Controversial is, among other things, the skimming of Internet data at a large Internet node in Frankfurt / Main.
"News service means it has to be done quickly," said Graulich, who teaches public law at the Humboldt University in Berlin, the German Press Agency in Berlin. "You cannot imagine a system in which an intelligence service should quickly clarify information or a situation and then complicated reconciliation bodies take too long." The Federal Republic had the right and the duty towards its residents to organize their self-defense. "The international intelligence service makes an indispensable contribution to this."
Lawsuit as a 'hindrance' to intelligence
Graulich said that Germany had been an intelligence hunting ground for 45 years until reunification. "We appreciate the sovereignty that we finally gained over our foreign intelligence." The plaintiffs in the proceedings pending before the Constitutional Court "had not shown whether they also prevented their own countries from providing intelligence in Germany by means of appropriate lawsuits".
In 2015, Grueslich had worked in the spy affair for the US secret service NSA as a special investigator for the federal government and a shop steward for the NSA investigation committee of the Bundestag.
The background to this is a constitutional complaint by media organizations and internet representatives, which is to be negotiated in Karlsruhe on January 14 and 15. A judgment is not expected until months later. In their opinion, the new BND law that came into force in 2017 legalizes global mass surveillance. The BND can listen to calls abroad and evaluate Internet traffic practically without restrictions.
Negotiated global validity of a German fundamental right
Behind the lawsuit is an alliance around the organization Reporters Without Borders (ROG) and several foreign journalists. They fear that grievances will go undetected worldwide because contact persons can no longer turn to the media with confidence. German editorial secrecy would also be eroded if, for example, partner media could be intercepted during major international research.
Article 10 of the Basic Law protects the confidentiality of letters and telecommunications. If a security agency wants to intercept suspects, there are considerable hurdles. In simple terms, the plaintiffs' goal in Karlsruhe is to apply this fundamental right, which applies in Germany, worldwide.
Interverband eco: Protecting the fundamental rights of German users is technically impossible
Klaus Landefeld, Vice Chairman of the internet association eco, said that it is not technically possible to protect the fundamental rights of German users by filtering their data from the monitored foreign data streams. "The best filter has a rate between 99 and 99.5 percent." With billions of communication connections every day, however, some ten million remained that would be affected by the listening practice. "And just one mistake would be a fundamental rights problem."
Reporters Without Borders also assumes that the BND cannot technically differentiate between German and foreign users when it comes to eavesdropping. "In this respect, we are concerned with protecting Germans against mass surveillance," says ROG Managing Director Christian Mihr of dpa. Legally, the organization is concerned "with the human right to privacy and also the human right to freedom of the press and information". Targeted surveillance "in individual cases, for example with terrorists" should of course continue to be possible if there is reasonable suspicion.