German intelligence can't spy on foreigners outside Germany
dw.com
dw.com
Germany's Constitutional Court ruled on Tuesday that monitoring the internet traffic of foreign nationals abroad by the BND intelligence agency partly breaches the constitution.
And this paragraph provides more nuance:
The ruling said that non-Germans were also protected by Germany's constitutional rights, and that the current law lacked special protection for the work of lawyers and journalists. This applied both to the collection and processing of data as well as passing on that data to other intelligence agencies.
Essentially: The law as written does not sufficiently protect the constitutional rights of all human beings, so the intelligence service is directed to improve the law to provide enforceable protections as were found absent.
That's a pretty big task if it's not heavily caveated. I'm curious how they manage conflicts around citizenship and constitutional reach then. I'd love to hear a German Constitutional scholar weigh in.
If their constitution protects non-citizens does that mean that German police/military are required constitutionally to protect non-Germans from acts by non-German states or individuals? Are there any positive rights in the German constitution (like a right to be provided legal counsel) that a non-German citizen could "charge" the government for so to speak?
It seems based on this interpretation that someone from - say Nicaragua - could claim that the Nicaraguan government is in violation of German constitution and the German government would be obliged to provide counsel to the Nicaraguan citizen.
So no, this is not a big task. It’s not a task at all.
Morally, and really from a PR standpoint as well, anything else would have been impossible even at the time of the framers. If you are known for your declaration of "all men being created equal" and possessing "certain inalienable rights" you can't really turn around and say "no, sorry, you're an alien".
Voting or residing in the United States isn't generally among the universally recognised human rights and can be separated from, for example, the right to a (fair) trial. Without that, foreigners on US soil, and you everywhere else on earth, would have absolutely no protection and could literally be executed on the whims of some Sheriff or prosecutor.
The use of drones for targeted executions is a strangely useful example showing this: only because non-citizens are protected in general did the US need to come up with the fantasy that is its "unlawful combatant" construction.
Only some basic rights are afforded to non-citizens. Others are so-called "German basic rights" and only apply to citizens. (And by some legal machinery these rights are extended to EU citizens.)
> protect non-Germans from acts by non-German states or individuals
Obviously not. How on earth could you even think that? This ruling is about what the BND, a German government authority, does. It does not apply to foreign secret services like the CIA, it does not apply to foreign civil entities like Amazon, it does not apply to imagined entities like the Illuminati.
> It seems […]
When your reasoning leads to prima facie faulty results, you should examine your premises.
You're only right insofar as that is the "default catchall" that is used when no specific other basic right is there and the courts find it proper to allow something also for non-citizens.
I think the questions you are touching upon are very interesting. There are definitely a lot of "positive rights" in the German constitution, that is to say rights, that do not simply protect an individual from action by the state but actually require the state to act in a certain way. That being said, the German Constitutional Court (GCC) is very careful not to "over-interpret" the constitution in such a way that the state only has one legal way of handling an issue, which is especially true in these constellations of so called Schutzpflichtverletzungen (violations of the duty to protect).
Regarding the ruling issued today this explicitly only concerns "Abwehrrechte" (rights against actions by the state). Two key provisions from the judgement read:
>Der Schutz der einzelnen Grundrechte kann sich im Inland und Ausland unterscheiden. (The protection of fundamental rights can differ regarding their application inside or outside German sovereignty.)
>Jedenfalls der Schutz des Art. 10 Abs. 1 und des Art. 5 Abs. 1 Satz 2 GG als Abwehrrechte gegenüber einer Telekommunikationsüberwachung erstreckt sich auch auf Ausländer im Ausland. (At least the protection of Art. 10 I and Art. 5 I 2 GG as rights __against actions by the state__ in relation to the Surveillance of Telecommunication also protects foreigners outside German territory)
(translations very roughly by me)
This is more speculative but this shows in my opinion that the Court sees the problem you're referring to and is very careful in stating that there can be differences between inside and outside jurisdiction AND that the current judgement only concerns Abwehrrechte against the state.
It's difficult to give a complete summary but basically there already have been some judgments by courts in Germany regarding the air base. Those judgments state that there are certain obligations arising from the constitution and also from international law when it comes to supporting the US in coordinating drone strikes. Things get tricky because it's not even clear what the US army is doing exactly in Rammstein and also the German governments obligations under international law (in particular their contract with the US) have to be considered when restricting their duty not to allow targeted killings.
I don't think you could argue that the current judgment "leaves a loophole" because the BVerfG might reasonably make a judgment in the future that the German government may not allow CIA monitoring in Germany. (Or it might not do this, but this judgement does not indicate anything in this regard)
https://cja.org/what-we-do/litigation/legal-strategy/univers...
I can't find much information on this in English, but I believe it was Spain that also put in place an explicit law that you can use Spanish courts for human rights cases that have no very direct link to Spain.
We're seeing this more and more on many topics linked to human rights where things stemmed from a good intention but resulted in sweeping and far-ranging consequences.
Here for example I don't see how anything good in practice can result from this decision. I'm sure that the BND already has procedures to decide who to spy on, both because of operational and political concerns. Adding more restrictions based on "human rights" really only impede operations when they should be nimble and might push them more underground, i.e. with less oversight. My guess is that they'll find a way to have a procedure and paperwork in order to follow the letter of this decision but that in practice nothing will change at all because that would harm national interests.
Spy agencies are restricted by laws and should be restricted by laws.
But it should be sensible taking into account the reality of what these agencies are and do, and not based on idealism.
Their purpose and what they do has not changed and will not change because of this decision because there is a need to protect national interests and that is not achieved by being a boy scout. Therefore they will try to find a way to get around it as much as possible, be it in the drafting of the new law or in practice.
And, since the BND answers to the CIA, sharing of information will be up to the CIA, according to the national interest of the USA first, and Germany second.
And we all know how well that approach is doing lately.
Luckily spy organizations have no experience being secretive about what they're doing.
Maybe dang can update it with something more to the point.
They did not forbid the BND to spy on foreigners. They can still do this, however the current regulation does not protect journalists for example. In the current case it would have been possible for a rogue Government to request BND data on journalists from their country and prosecute them. This goes against fundamental German laws and the new BND regulation needs to take this into account.
The new BND regulation also needs to clearly outline why they spy or why they share data with foreign agencies.
There will also be a new oversight/control body with it's own budget and personal.
Up until now, they were able to do pretty much whatever they wanted as long as it didn't concern Germans and even that was not really working since they were collecting bulk data at internet exchange points for example.
Because the german government isn’t one single entity, and that’s what the Wikipedia article says
> While funded by the German government, the work of DW is regulated by the Deutsche Welle Act,[5] meaning that content is intended to be independent of government influence.
There is however a difference and you can see it on articles as the one above. I'm sure no journalist was pushed to release this article in this way but this is what happens when you're funded by the current Government and have to report something they won't like. You just leave out certain information here and there and with that you change the overall tone of the information.
This is the article by the main news outlet of the normal German public service on the same topic:
https://translate.google.de/translate?hl=de&sl=de&tl=en&u=ht...
PS: German Government means the "Federal Government or the "Cabinet of Germany": https://en.wikipedia.org/wiki/Cabinet_of_Germany
The decision targets the "without suspicion" part.
Think about that for a second. The German government confers more privacy rights on foreigners with no connection to their country whatsoever than the American government is even willing to extend to citizens.
You misinterpreted that quite a lot. It's more or less the opposite.
Actually the German government created a law that allowed this kind of surveillance. The highest court just killed that law and this is what this news is about.
We Germans usually only call the cabinet ministers and the chancellor (the executive branch – not the legislative branch!) "government", and depending on the issue, also the civil service.
You call the whole "state thing" "government".
And being German I'm proud of it. It's hard to make any rational case for why these rights which we take to be fundamental and vitally important ought to end at our borders.
There are right and laws that should apply to all, but realistically there is also the national interest, "Raison d'Etat".
There obviously has to be a balance but if rights and laws are absolute and may never be breached or ignored then foreign intelligence services simply cease to exist, and it is highly naive to think that this would be fine.
I don't believe you have such a view about armies, and I don't think that the German ruling is in danger of making their foreign intelligence services inoperable.
It's just like the Police shouldn't treat people like criminals who haven't given themselves away and search their cars and houses arbitrarily.
The constitution should be there to actually defend those rights, not just so people have something to pound their chests about every day while being undermined by all kinds of laws and exceptions, making it selectively worthless.
It's very costly to do blanket monitoring so in practice it's just keywords matching or they do target suspicious people for more in depth analysis.
I am quite comfortable with my country's intelligence services doing blanket keywords monitoring, or more, on as many communications as they can get their hands on coming from specific countries or geographical areas.
"Don't hate the player, hate the game" as the saying goes.
It is about any person that would be caught in the wide spying net despite not being under any reasonable suspicion whatsoever. Blanket monitoring just means "more than one's warranted interest targets". If there are reasons for suspicion and they justify spying it will still happen.
> I am quite comfortable
Should the constitution enshrine the right to "the lowest thing one person is quite comfortable with"? Yes, plenty of people are quite comfortable taking a lot of crap as long as they can still brag about their rights and their constitution. Others would rather see those rights enforced. Do you want your constitution to protect more than your bragging rights? Than perhaps you should defend it an not just "be comfortable" with one more violation.
What our court is arguing is that these rights are cosmopolitan in nature, not that they're unlimited. What I think is irrational is that the German border (or anyone's border) delineates those rights. To say this surveillance is justified because the services and the nation state exists is circular. The question is why we let tribalism determine whose rights we defend in the first place.
In terms of foreign intelligence I do not see why foreign journalists or lawyers should be afforded any special protection.
Border do delineate rights. At the very least they delineate areas of 'concern'. The German government's job is to look after Germany and its citizens and residents.
You can argue against nation states but I think that is highly idealistic. In any case threats abroad are not only coming from foreign governments, very far from it.
Basically, IMHO foreign intelligence services should not be restricted in what they can do, rather they should only be required to get the right level of approval depending on how serious the action is. I believe that this is already the case (though I understand that German services may be more restricted than others) and that it will continue to be the case, hence why I don't think this decision will change things much.
Quote:
> “I suffered a lot in Azerbaijan from the unlimited power of the government and their abuse of anti-terror legislation, which also allowed them to interfere with my privacy and expose my intimate life," she said in an emailed statement. "I am happy that democratic checks and balances are still operational in Germany and it was possible to revert the abusive laws which could be used as instruments against whistleblowers and journalists."
While it's not likely that the BND would share information about them directly with the government of Azerbaijan, the fear was that it would be shared with other services, which might take fewer precautions when passing it on. It could also leak, either accidentally or as a result of other countries' spying efforts.
Well, also, (amply justified by Germany's history) public distrust of mass surveillance. Joining wouldn't really be politically viable.
In any case, the BND suddenly became a lot less attractive for any intelligence-sharing deals.