German Constitutional Court: Federal intelligence surveillance powers BND are unconstitutional

The necessary background: On November 4, 2016, Germany passed a law to expand the powers of the German Federal Intelligence Service (“BND”For its abbreviation in German) that allowed it to collect intelligence signals from foreign targets located outside German territory and cooperate with foreign intelligence services in these matters, in order to counter possible attacks or threats. At the time that said law was approved, it was criticized for the security problems and violation of civil liberties that it could generate, he said. The New York Times.

Obviously, those criticisms had real hold. Well, very recently the German Constitutional Court pointed out that some considerations of this rule violated the universal right to privacy of communication. Furthermore, it determined that the “prevention” justifications they used were not a sufficient reason to violate an individual's privacy. In this sense, the ruling ordered that the norm be reformulated in order to clarify the motivation to spy on people abroad, however, it did not prohibit said practice completely. Despite the latter, This ruling marks the first time that a court has extended the rights guaranteed by its Constitution to non-Germans abroad.

According to the court, the monitoring to which certain people could be subjected was not based on sufficient objectives to justify it. Likewise, it lacked important safeguards, for example, in the case of the activities of journalists or lawyers, as well as a guarantee of sufficient protection of legal interests and sufficient thresholds for intervention.

This case was brought before the court by a group of journalists and civil liberties organizations as a result of the outrage caused by the vast privacy violations by the intelligence services that were brought to the attention of society by Edward J. Snowden, former contractor for the US National Security Agency.

The ruling required that the law in question be reformulated in such a way that it stipulates that the individual right to privacy in communication, whether by letter, telephone or online, be established as a universal right of any person, anywhere. Likewise, it demanded greater control over the BND and limitations to share information with international intelligence agencies. Without a doubt, this ruling will establish new standards in the international protection of human rights and freedom of the press.

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Marilú Lazo
Bachelor in Law from the Pontifical Catholic University of Peru (PUCP). He has experience in corporate advice, as well as personal data protection and new technologies.


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