Criticism of the BND Act
With our current campaign #NotYourSource, RSF is calling for a more comprehensive protection for foreign media workers and their sources against surveillance by the German Federal Intelligence Service (BND). Members of the Bundestag now have the opportunity to revise the draft BND Act and to set a precedent for press freedom. Find and share our call to action on Twitter, Facebook, and Instagram.
Law permits surveillance of foreign journalists
The Federal Intelligence Service Act (or BND Act), passed in 2016, has thus far allowed Germany's foreign intelligence service, the BND, to monitor all the communications of journalists, entire editorial teams and media publishing companies in non-European countries – completely legally, when it serves Germany's political interests. In May 2020, the German Federal Constitutional Court upheld a constitutional complaint lodged by Reporters Without Borders (RSF) and instructed the German Bundestag to reform the BND Act by the end of 2021. The court agreed with RSF's argument that the BND must offer special protection for the communications of foreign media workers, as well as those of German journalists, since effective protection against disproportionate state surveillance is a prerequisite for freedom of the press and the protection of sources.
The Bundestag now aims to pass a new BND Act in spring 2021, which, in compliance with the Constitutional Court's requirements, must establish comprehensive protection against state surveillance for foreign journalists, as well as effective oversight of the intelligence agency's activities. The Bundestag could thereby set a precedent for press freedom and human rights that could signal change beyond the German context. However, substantial revisions to the draft law are required if journalists and their sources are to be properly protected.
The key demands of RSF:
- The BND Act must ensure comprehensive protection against surveillance for confidential relationships of trust (Vertraulichkeitsbeziehungen) such as those between media workers and their sources. This protection must extend to all information and data related to the journalistic work of these persons. This includes personal data (names, telephone numbers, IP addresses, etc.), research material, and traffic data such as email addresses and subject lines.
- The BND's mass surveillance must be restricted. Its practice of accessing hundreds of millions of emails annually without grounds for suspicion is incompatible with freedom of the press and civil rights. Tighter limits must be imposed on the number of communication networks that are tapped and the number of search terms used by the BND to trawl the data passing through these networks, and they must be checked as regards their appropriateness.
- Only specific indications of a threat to the state can justify the violation of relationships of trust meriting confidentiality protection.
- Oversight of the German intelligence services must be increased and the bodies entrusted with this task must be endowed with sufficient powers to effectively monitor the mechanisms for protecting fundamental rights and uncover abusive surveillance.
Landmark ruling against hastily enacted law
RSF filed the complaint that led to the landmark ruling of the Federal Constitutional Court together with the Society for Civil Rights (GFF) and several foreign journalists. After an oral hearing in January 2020, the court declared the BND Act unconstitutional on 19 May 2020, citing lacking provisions to safeguard the freedom of the press, as well as other shortcomings.
The CDU/CSU/SPD coalition government hastily enacted the current version of the BND Act in 2016, despite widespread protests from civil society as well as concerns expressed by the OSCE Representative on Freedom of the Media and three UN Special Rapporteurs. In passing this law, the coalition parties took the view that the fundamental rights enshrined in the German constitution, such as freedom of expression and privacy of telecommunications, did not apply to non-German citizens, or only applied to a limited extent. The Constitutional Court rejected this line of argument, ruling that German agents and authorities are obliged to respect fundamental rights not only within Germany, but outside German territory too.
Government draft act disappoints
In December 2020, the German government approved a draft for the required reform of the BND Act, which must now be debated by the Bundestag. However, the draft act does not meet the requirements stipulated in the Constitutional Court's judgment. In RSF’s view, it would require substantial revision in the parliamentary debate if it is to offer journalists better protection against surveillance. RSF Germany has issued a position paper that contributes detailed criticism of the draft act and concrete proposals for improvements to the political discussion.
Although the government's draft contains provisions protecting confidential relationships of trust, in practice it aims to protect only certain selected types of data. For example, under the new provisions it would not be clearly taboo for BND employees to process the results of journalists' investigative research.
Nor does the draft ensure the protection of traffic data, which includes information such as who spoke to whom, when and for how long. Yet this type of data accounts for the bulk of the information collected by the intelligence agency. Since the revelations of NSA whistleblower Edward Snowden it has become clear that this data is extremely important for the work of the intelligence agencies. Were this data to be passed on unfiltered to other intelligence agencies, it could put media workers in many countries in danger.
What is strategic surveillance?
In its strategic surveillance of telecommunications – unlike with surveillance operations directed against individuals – the BND has telecommunications companies divert internet communications on a mass scale. The BND then scans this data for "intelligence-relevant" information using search terms ("selectors") such as email addresses or content keywords. RSF considers this practice to be disproportionate, groundless mass surveillance, because the intelligence agency's technical access and excessive search criteria are not subject to any effective restrictions or controls.
The German Federal Constitutional Court called for the agency's technical access to communications networks to be limited. Under the federal government's draft act, this access would be restricted to 30 percent of the communications sent via global telecommunications networks, a volume that is still far beyond what is technically feasible, however, and therefore not an effective restriction in line with the Constitutional Court's requirements.
Why was the BND Act revised in 2016?
In the aftermath of the Snowden revelations, the German Bundestag set up a parliamentary committee to investigate the NSA spying scandal. The investigation revealed that the BND was involved in questionable surveillance programmes, certain aspects of which lacked a legal basis. The federal government therefore announced that it would introduce a new BND Act to ensure more effective oversight of the intelligence agency's activities and to place them on a more solid legal footing. However, the amended BND Act, which has been in force since the beginning of 2017, came as a shock to all those who consider freedom of communication, freedom of the press and freedom of the media to be valuable basic rights that must be protected worldwide.
What did RSF criticise about the new BND Act?
Rather than effectively limiting the intelligence service's extensive surveillance practices, the BND Act which has been in force since 2017 has essentially merely legalised them. For example, the law enables the BND to intercept all the emails, text messages and phone calls of foreigners living outside Germany without specific reasons for doing so and also to process them without appropriate restrictions. The prerequisites for carrying out this strategic "foreign-foreign surveillance" are vague and broadly defined, and there is no effective oversight. The regulations are therefore far laxer than those that govern domestic surveillance measures under the German Code of Criminal Procedure, for example those that apply in investigations into organised crime. In such cases surveillance may only be carried out if there is a concrete suspicion of criminal activity and a court order has been issued.
Nor does the BND Act that came into effect in 2017 foresee special protection for media workers. In fact, with this law it would probably still be permissible for the BND to monitor the communications of employees of prestigious media outlets such as the der BBC and the New York Times, as it did in the past.
Was the complaint about securing special rights for journalists?
No. Journalists lodged the complaint because they are particularly affected by the BND's mass surveillance. Indiscriminate mass surveillance violates the right to privacy – a universal human right that applies for everyone, everywhere. It may only be restricted if there are good reasons for doing so. However, under the BND Act, the BND is allowed to intercept global communications arbitrarily and without restrictions if it believes this to be in Germany's interest. The Society for Civil Rights (GFF) and several media organisations took action against this on behalf of all those whose communications are intercepted by the intelligence agency.
Journalists bear a special responsibility in a democratic society, because with their critical inquiries and investigative research they monitor the actions of the state. They therefore enjoy certain protective rights, such as not being obliged to reveal their sources in court. But in the digital age, the ever-expanding collection of data is increasingly negating these analogue protective rights. If the state intercepts the communications of journalists and therefore knows all about their research into its activities, the latter can no longer do their job effectively. Moreover, potential sources will be deterred from confiding in them. All this will impede critical reporting in the long term. Consequently, spying on journalists – no matter where they are in the world – is an attack on press freedom.
What needs to be done now?
In the opinion of RSF, the draft act to reform the BND Act passed by the federal cabinet on 16 December 2020 falls far short of the requirements of the Federal Constitutional Court. In the next steps of the legislative process it now falls to the Bundestag to establish clear and transparent provisions and effective oversight to ensure that press freedom is protected in the course of the intelligence agency's work. The reform could potentially already be passed by the Bundestag in the first quarter of 2021. The judgment of the Federal Constitutional Court stipulates that a new legal basis for the activities of the BND must be in place by the end of 2021, at the latest.