The German Constitutional Court Will Revisit the Question of Mass Surveillance, Will the U.S.?

On January 14 and 15, 2020, the German Federal Constitutional Court will be holding a hearing to reevaluate the Bundesnachrichtendienst (BND) Act, which gives the BND agency (similar to the National Security Agency in the United States) broad surveillance authority. The hearing comes after a coalition of media and activist organizations including the Gesellschaft für Freiheistrechte filed a constitutional complaint against the BND for its drag net collection and storage of telecommunications data. This new hearing continues a renewed effort on the part of countries around the world to re-access the high cost of liberty that comes with operating an invasive drag net surveillance program and may increase global pressure on the United States’ intelligence community.

One of the coalitions leading arguments against massive data collection by the foreign intelligence service is the fear that sensitive communications between sources and journalists may be swept up and made accessible by the government. Surveillance which, purposefully or inadvertently, sweeps up the messages of journalists jeopardizes the integrity and health of a free and functioning press and could chill the willingness of sources or whistleblowers to expose corruption or wrongdoing in the country.

In September 2019, based on similar concerns about the surveillance of journalists, South Africa’s High Court issued a watershed ruling that the country’s laws do not authorize bulk surveillance. In part, because there were no special protections to ensure that the communications of lawyers and journalists were not also swept up and stored by the government.

In EFF’s own landmark case against the NSA’s dragnet surveillance program, Jewel v. NSA, the Reporters Committee for Freedom of the Press recently filed an Amicus brief making similar arguments about surveillance in the United States. “When the threat of surveillance reaches these sources,” the brief argues, “there is a real chilling effect on quality reporting and the flow of information to the public.”

This new complaint comes years after the revelations of global surveillance coalitions exposed by Edward Snowden, and only two years after a report revealed that BND had surveyed at least 50 phone numbers, fax numbers, and email addresses of known foreign journalists starting in 1999.  

In 2016, Germany’s Bundestag passed intelligence reform that many argued did not go far enough. Under the post-2016 order, an independent panel oversees the BND and any foreign intelligence collected from international communications networks must be authorized by the chancellor. However, the new reform explicitly allowed surveillance to be conducted on EU states and institutions for the purpose of “foreign policy and security,” and permitted the BND to collaborate with the NSA—both of which allow for the privacy of foreign individuals to be invaded.

It is worth noting that part of what allows a case like this to move forward is the ability of German citizens to know more about the surveillance programs their nation operates. In the United States, our lawsuit against NSA mass surveillance is being held up by the government argument that it cannot submit into evidence any of the requisite documents necessary to adjudicate the case. In Germany, both the BND Act and its sibling, the G10 Act, as well as their technological underpinnings, are both openly discussed making it easier to confront their legality.

We eagerly await the outcome of the German hearing and hope that the BND will be another fallen domino in the movement to restore global privacy.  Meanwhile, EFF will continue to litigate our constitutional challenge to the U.S. government’s mass surveillance of telephone and internet communications and will complete briefing in the Ninth circuit in late January 2020.