A Constitutional Court of Karlsruhe dismissed the appeal of journalists without borders (Reporters without Borders – RWB) and the GESELLSCHAFT Für Freiheitsrechte – GFF) against the Federal Intelligence Service (BND), with the two organizations following the European Court of Justice. (ECtHR).

The new BND legislation, as it was formed after the 2020 review, “allows the full monitoring of people working in the media, especially outside Germany, thereby endangering freedom of the press,” RWB Director, Aya Oster. “These are serious violations of the private sphere,” which could be more widely concerned with citizens in Germany, adds GFF’s Bigian Mois.

BND’s long hand

In the context of the “strategy of acquiring information abroad”, the Federal Intelligence Service has the potential to use media monitoring means. Among other things, the Trojan state software – a software that is secretly installed on electronic devices, such as mobile phones. In this way it can control all the communications of each individual person – at the global level but also in Germany, where the BND is not allowed to operate.

“The legal framework allows more violations of fundamental rights than ever,” Moin criticizes, as sad as the fact that the Constitutional Court has not even agreed to substantially examine the appeal of the two organizations. And in May 2020, the same court had dealt with the previous legal framework for the BND, considering it contrary to the German Constitution.

‘Legal and Political Scandal’

Moin is responsible for coordinating procedures in both the recent and earlier appeal of the two organizations. And according to the fact that the relevant legislation makes it possible to monitor individuals is a “legal and political scandal”. The current context, as well as the oldest that had been considered unconstitutional, allows BND online monitoring abroad in many different ways and with the help of search terms.

The unacceptable, according to Moini, is that BND can collect too many data, investigate too many areas, monitor too many people, and have too extensive supervision of what research journalists do.

According to the legal framework itself, it contains many ambiguities about “risk recognition”. For example, BND can watch people and channels of communication “to protect Germany’s action abroad”. This term, however, is extremely wide, so “they can fall into its field virtually everything”. Because it is nowhere to be explained exactly what it means to act or how it is protected.

The risk of non -Germans is greater

According to Moin, the distinction made by the BND law between people with and without a German passport is also unconstitutional. With this logic, for example, if a German is married to a Turk, they live in Germany but spend a time abroad, BND could watch Turkala, but not her husband.

Legislation does not allow the evaluation of e-mail or messages sent by platforms such as Telegram-but this is not enough to reassure Moin. Because the Service can access metadata and find out who communicates with whom and for how long – and as a result, it can ascertain and analyze the person’s contact network and thus obtain information on their activities.

Impact on critical journalism?

Helena Khan by the RWB is worried that for journalists and other professionals, such as doctors and lawyers, it is becoming more difficult to protect their sources and contacts. And at the same time “when the state mechanism is hidden, it becomes more difficult and critical journalism.”

All this is also difficult for journalists to access informants, as the relationship of trust is disturbed – but it is a prerequisite for good, independent, critical journalism.

The two organizations, however, do not only consider the BND activity threatening. For Han it doesn’t matter what the country or the government is watching journalists and not only. Because wherever and whatever it is attempted, monitoring journalists is “a very serious violation and attack on freedom of the press”.

Curated by: George Passas