Right to Privacy Extends to Foreign Internet Users, German Court Rules
The ruling was announced at the Federal Constitutional Court in Karlsruhe, Germany, on Tuesday. The decision is the first time that the court has extended constitutional rights to non-Germans.
The ruling comes seven years after the revelations of Edward Snowden, former employee of the US National Security Agency (NSA) - and without him it probably wouldn't have happened.
The intelligence services cannot randomly search the digital data of citizens of other countries living abroad, the judges said, in a decision welcomed by civil rights activists.
BERLIN — Privacy rights enshrined in Germany’s Constitution extend to foreigners living abroad and cover their online data, the country’s highest court ruled on Tuesday, ordering Chancellor Angela Merkel’s government to overhaul a law governing the foreign intelligence agency.
The decision by the Constitutional Court found that parts of a 2016 law governing the country’s foreign intelligence agency, known by its German abbreviation BND, in part violated the universal right to privacy in communication. The ruling ordered the law to be rewritten to clarify the motivation for spying on individuals abroad, but it stopped short of banning the practice outright.
In its current form, the law permits the BND to gather, evaluate and even share data generated by communication between non-Germans outside the country to counter potential attacks or threats. Passage of the law fueled an intense debate over security and civil liberties in a country where the lessons of disregard for individual privacy under the Nazi and Communist regimes still resonate strongly.
The court found that the pre-emptive measures stipulated in the law were not clear enough grounds for violating an individual’s privacy.
“In particular, the monitoring is not based on sufficient objectives and structured in such a way that they are controllable; there is also a lack of various safeguards, for example to protect journalists or lawyers,” the court said. It added that the law lacked “a guarantee of sufficiently weighty protection of legal interests and sufficient thresholds for intervention.”
A group of journalist and civil liberties organizations brought the case before the Constitutional Court, arguing that the 2016 law handed too much power to the state and failed to uphold universal human rights to privacy guaranteed by Article 10 of the Constitution. The ruling is the first time that the court has extended rights guaranteed in the Constitution to non-Germans.
“The ruling sets new standards in international human rights protection and for the freedom of the press,” said the Society for Civil Rights, a Berlin-based nonprofit organization that filed the suit along with several journalists’ organizations.
Outrage about surveillance in Germany was prompted by the extensive privacy breaches by intelligence services that were revealed by Edward J. Snowden, a former contractor for the U.S. National Security Agency, and, shortly after, by the disclosure that the N.S.A. had tapped the chancellor’s cellphone.
Around the same time, Ms. Merkel’s government was struggling to respond to a series of Islamist terrorist attacks in the country and seeking to expand Germany’s ability to defend itself without relying on the U.S. security apparatus. The 2016 law was an attempt to balance the considerations of privacy and security, but the court decided on Tuesday that the BND had been afforded too much power.
The ruling demanded that parts of the 2016 law be rewritten by the end of 2021, stipulating that the individual right to privacy in communication, whether by letter, telephone or online, be established as a universal right of any individual, anywhere. The court also called for more controls over the BND and for limitations on the ability of the service to share information with international partners.
Norbert Röttgen, a member of Ms. Merkel’s conservative governing party and a contender to succeed her, criticized the ruling in a post on Twitter as “difficult to explain abroad” because it “raises considerable questions about our strategic operations and ability to cooperate in a time when outside aggression is increasingly complex.”
For civil rights groups, the ruling was an overdue move to bring the country’s intelligence agency in line with its Constitution.
“Today’s verdict finally incorporates the BND into the German Constitution,” said Bijan Moini, a lawyer who represented Reporters Without Borders in the case. “The court sets far-reaching guidelines on how far and deep the service may monitor, how vulnerable groups of people must be protected and independent control must be strengthened.”
The Federal Constitutional Court, Judgment of 19 May 2020, 1 BvR 2835/17, press release:
In their current form, surveillance powers of the Federal Intelligence Service regarding foreign telecommunications violate fundamental rights of the Basic Law