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Federal Constitutional Court: What can a German intelligence agency do abroad?

How do Germany's secret services actually get their information? The Federal Constitutional Court in Karlsruhe took two days to clarify this once legally binding. Strictly speaking, the spying of the Federal Intelligence Service (BND) is being negotiated abroad. After the first day on Tuesday, it seems clear that things will not go on as before.

But to say that in advance: The judges in Karlsruhe will not decide whether Germany should have foreign intelligence. Or may have. At least in this process, this is largely undisputed – on all sides. The fact that a country like Germany needs to know what is happening in the world, that agents, satellites and data scouts on the Internet are needed to protect itself against all kinds of threats and to be able to make strategic decisions in an informed manner – none of this was the case on the first day of the negotiation for debate.

Chancellery Minister Helge Braun, who coordinates the work of the secret services for the Federal Government, emphasized unusually clearly that Germany increasingly needs its own situation picture very quickly – with emphasis on "Own", currently for example in Libya or on the Gulf. in view of "increasing nationalisms" you can no longer rely solely on the findings of friendly services, you can even expect that allies will only have their information "Vested interests" could pass on. A fairly clear indication of the rapidly declining trust, especially between the Americans and the Federal Republic.

What is the secret service allowed to do?

So the question that is being disputed in Karlsruhe is not: does Germany need a foreign secret service? But: What can he do?

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The idea largely shaped by Hollywood and James Bond, that agents abroad are actually allowed to do everything, does not apply to everyday life at the BND. Like every German authority, it works on the basis of a law, with official regulations and budgets and organizational charts, more or less effectively controlled by the Federal Chancellery and the Bundestag.

Since 2017, however, the BND law has expressly allowed the service to: "Telecommunications by foreigners abroad" to monitor. The idea behind it: The BND should be able to listen when, for example, terrorists in Yemen agree to carry out attacks on the Bundeswehr in Jordan. Or when North Korea plans new nuclear tests. Or when Russian cyber trolls try to manipulate elections in the West. For this purpose, data is extracted from network nodes in Germany, filtered according to certain criteria, evaluated and, if necessary, passed on to the federal government. Any surveillance of Germans in Germany and abroad is legally excluded.

This so-called foreign-foreign telecommunications education, in German: the monitoring of the network, is one of the most important means of obtaining information, said BND President Bruno Kahl in Karlsruhe. In some areas of the world, where you don't have your own informants "Sensors" even if it is often the only source. Around twenty percent of the "daily traffic" will be achieved in this way. The automated systems delivered around 150,000 hits every day, from which around 260 relevant messages would be filtered out every day.

Constitutional complaint from journalists

German and international journalist organizations and several investigative journalists from different countries have lodged constitutional complaints against this surveillance practice, coordinated by the Berlin NGO Society for Freedom Rights (GFF). The plaintiffs fear that the collection and possible storage of communication endangers their sources and massively complicates their work. It was also not sufficiently ensured that it was technically not possible to guarantee that no Germans would get into the BND's digital networks during global surveillance. Ulf Buermeyer of the GFF explained that putting everyone under general suspicion is simply disproportionate.

Just how seriously the court takes the constitutional complaint is shown by the fact that it started the two-day hearing. An unusual step that only occurs in particularly explosive cases. And the judges used the time. They asked and asked the representatives of the Chancellery and BND, continued to investigate, listened to independent experts on technical subtleties, did not give up even after hours – and made it clear through their insistence that the current legal situation is unlikely to remain.

The representatives of the federal government bravely opposed this. Chancellery Minister Braun, for example, said that in no other state is the protection of those affected as intense as in Germany. The BND's educational goals would "very precisely defined", all knowledge about German citizens and EU citizens would be sorted out reliably, the protection of the core area of ​​privacy was guaranteed as well as the protection of certain, particularly sensitive professional groups – lawyers, journalists, clergymen. "We delete as much as we collect every day," protested Braun.

The BND bosses also struggled to portray their service as a data protection authority. They described in detail how the information obtained was repeatedly screened and filtered in several stages until only clean, relevant material remained. Whoever listened to them could easily believe that the protection of fundamental rights was at least as important in this office as the gathering of information. To put it mildly, however, the judges did not give the impression that they were completely convinced of this presentation.

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