Debates about how the rules apply to spies are as old as the Bible. Rahab was the only resident of ancient Jericho who was spared the Lord’s curse and the destruction of the city’s property. Joshua wanted to show his gratitude for the risks Rahab had taken when she hid the Hebrew spies Joshua sent to scout Jericho’s defenses. Flouting the newly minted ninth commandment, Rahab brazenly lied about the spies when she was confronted by the King of Jericho. Joshua seemed to understand that doing God’s work sometimes means breaking God’s law.
The German Federal Constitutional Court sees things differently. In its decision in the BND Act Case issued on May 19, the court ruled that Germany’s spies must conform their conduct to the commands of the German Grundgesetz (Basic Law or constitution) even when their operations only involve foreigners in a foreign context (“foreign-foreigner” espionage). The court has insisted instead that German intelligence services follow the wisdom of a different Old Testament figure, the contemplative king of Ecclesiastes who urged: “do good wherever you go.”
Edward Snowden’s National Security Agency (NSA) revelations in 2013 and 2014 sent shock waves through Germany. He exposed America’s vast and voracious surveillance and data collection operations in the Federal Republic. The leaks showed that among the devices caught in America’s surveillance net was the phone of Chancellor Angela Merkel, prompting widespread outrage and feelings of betrayal in Germany. Germans’ intense reaction to the “NSA affair” was framed in part by the high value they place on privacy. I documented this cultural disposition and legal commitment in my book Privacy and Power.
In response to Snowden’s revelations, the Bundestag (Federal Parliament) convened an inquiry. Practical and legal limits on the investigative committee’s ability to gather evidence on the NSA’s operations led it to focus on the German government’s intelligence activities and the extensive cooperation between Germany’s intelligence services and its partners around the world. Ultimately, the “NSA Untersuchungsausschuss” produced a 2,000-page report comprehensively documenting and critiquing the work of Germany’s intelligence community.
The report revealed, among other things, that the Bundesnachrichtendienst (Federal Intelligence Service or BND) conducted foreign strategic surveillance operations without the benefit of statutory authorization. The committee alleged that this was in conflict with Germany’s foundational constitutional principle “Gesetzmäßigkeit der Verwaltung” (legality of the administration). This requires German authorities to comply with existing law (Vorrang des Gesetzes). It also mandates that German officials act only when authorized to do so by a specific statute (Vorbehalt des Gesetzes).
In the absence of statutory authorization for Germany’s foreign surveillance operations, debate raged at the parliamentary inquiry, in the press and among scholars: Was the BND’s strategic foreign-foreigner telecommunications surveillance a violation of established constitutional doctrine? In part, the government defended the BND’s foreign operations by arguing that the Basic Law does not have extraterritorial effect.
The investigative committee’s report prompted the Bundestag to reform the BND Act in 2016. The amended law explicitly authorized strategic foreign-foreigner telecommunications surveillance. Most significantly, the BND Act made the material and procedural standards applied to those operations more permissive than those applied to telecommunications surveillance of foreigners in Germany or Germans wherever they might be located.
The amended act permitted foreign-foreigner surveillance operations if German officials conducted them from within Germany. In general, the strategic surveillance of foreigners in a foreign context would involve accessing telecommunications metadata and content as it flows through one of the global internet exchanges based in Germany, such as the high-volume exchange based in Frankfurt am Main.
Pursuant to the amended law, in order to have a legal basis, foreign-foreigner surveillance operations would have to fulfill one of several statutorily identified mandates: to discover and counter threats to the internal or external security of the Federal Republic of Germany, to safeguard the Federal Republic of Germany’s ability to act, and to acquire information concerning foreign and security matters of interest to the Chancellor’s Office or a ministry engaged with international or security issues.
The act requires the Chancellor’s Office to identify the telecommunications networks susceptible to these operations. In line with the EU definition, a network is understood to be any “transmission system and, where applicable, switching or routing equipment and other resources that permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed and mobile terrestrial networks, electricity cable systems.” Additionally, the collection of telecommunications content is permitted only pursuant to discrete search terms. Finally, slightly more restrictive standards apply to surveillance affecting EU citizens.
The amended act also imposed procedural requirements on the conduct of these operations. The BND must report on its foreign surveillance operations to an independent oversight panel. Excluded or improperly acquired data must be deleted promptly. The data can be shared with domestic legal institutions or foreign intelligence partners only if the transfer advances statutorily prescribed aims. Strategic foreign-foreigner telecommunications surveillance can be automated only if specific conditions are observed. Finally, the data can be saved, manipulated or used only when necessary to fulfill the BND’s overarching mandate.
But the reforms didn’t resolve many of the underlying legal issues associated with foreign-foreigner surveillance. Christian Schaller of the Berlin-based think tank Stiftung Wissenschaft und Politik published a comprehensive study of the 2016 reforms to the BND Act in which he anticipated the constitutional challenges to come.
And come they did. A number of parties lodged complaints with the Federal Constitutional Court (Bundesverfassungsgericht) challenging the amended law’s constitutionality.
Several of the complainants were non-German journalists with ties to the French nongovernmental organization Reporters Without Borders. These complainants claimed that their work in places such as Azerbaijan or Mexico, but also within the European Union, covers controversial political issues that are bound to be of interest to the BND and are likely to attract foreign-foreigner strategic telecommunications surveillance. They argued that awareness of the BND’s new statutory authority to pursue surveillance would undermine their reporting, in part by compromising or chilling the flow of information they receive from confidential sources. These claimants alleged violations of Article 10(1) (telecommunications privacy) and Article 5(1) (press freedom) of the Basic Law.
Another complainant was a German citizen working as a lawyer on human rights issues in Guatemala. He argued that he would be harmed by the BND’s new statutory authority to conduct strategic foreign-foreigner telecommunications surveillance because those operations would not be able to identify him and ensure the strict telecommunications privacy he is guaranteed under Article 10(1) of the Basic Law as a German citizen.
All of the claimants objected that the regime established by the amended BND Act does not conform to constitutional requirements protecting particular content or demanding protective procedures. They noted that the amended law does not provide special privacy protection for particular confidential communications, such as those involving a medical professional, a journalist or an attorney. They also protested that the amended BND Act permits the collection and dissemination of strategic foreign-foreigner telecommunications information to German and non-German intelligence agencies without the necessary constitutional limitations. Finally, the claimants complained that the amended BND Act gives EU citizens less protection than Germans.
The court held a two-day hearing in the case earlier this year. The proceedings attracted widespread attention and produced sensational headlines blaring “Ex-BND Head Warns the Constitutional Court Not to Endanger Security” or “The Secret Service Is Afraid of the Court.”
It is a remarkable case. It called on Germany’s activist Constitutional Court to consider whether Germany’s spies are subject to constitutional constraints, even when acting against foreigners located far from the German homeland. The court was obliged to answer a confounding question that has forever plagued liberal, constitutional democracies: Does the law apply to the “second oldest profession”?
To resolve that dilemma, the court took on questions about the extraterritorial effect of Germany’s constitution. Deciding the case one way risked eroding the Basic Law’s commitment to human rights; deciding it the other way would betray an imperial impulse to project German constitutional values around the world.
The court ruled that the 2016 reforms of the BND Act were largely unconstitutional. The court announced the groundbreaking ruling that the German Constitution imposes limits on the exercise of German state authority, even when it involves foreigners in a foreign context. In this case, the limits come in the form of the telecommunications privacy and press freedom guaranteed by Articles 10(1) and 5(1) of the Basic Law. Applying those protections through the lens of its stylized and systematic proportionality analysis, the court ruled that the BND law was constitutionally deficient in a number of ways. But the court didn’t nix foreign-foreigner surveillance altogether. The court concluded that a properly designed framework for strategic foreign-foreigner telecommunications surveillance could satisfy constitutional standards. The court gave the parliament until 2021 to make the needed corrections to the BND Act.
The path-breaking issue before the Constitutional Court in the BND Act Case was whether the Basic Law’s rights protections apply to the German state’s actions even when they take place outside Germany’s domestic, sovereign territory. The issue of the Basic Law’s extraterritorial effect provoked considerable scholarly attention after the court left it unresolved in a 1999 judgment in which it issued a narrower ruling that the Article 10 protection of telecommunications privacy extended to the surveillance of German citizens in a foreign context. The BND had seized on this lacuna in the case law to assert the defense that its strategic foreign-foreigner telecommunications surveillance should evade constitutional constraints.
The recent German ruling may seem jarring to an American audience. The U.S. Supreme Court has recognized only extremely limited possibilities for extraterritorial effect of the U.S. Constitution for the benefit of foreigners. This means that overseas American intelligence operations against non-U.S. persons are not affected by constitutional rights guarantees.
In its BND Act Case judgment, the Federal Constitutional Court reached the opposite conclusion and articulated a vision of German constitutionalism that radiates around the world—constitutional constraints apply to the government wherever the German state exercises its authority. This conclusion was prompted by a mix of textual and teleological interpretation.
The court concluded that the text of the Basic Law demands the extraterritorial application of the basic rights it enshrines. Most prominently, Article 1(3) of the Basic Law states that “the following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.” The court found that this provision establishes a “comprehensive commitment on the part of the German state to basic rights” and that no exception to that commitment on the basis of territory can be derived from the provision’s text. This reading of Article 1(3) was confirmed by the court’s understanding of the framers’ intentions, which were to assert the primacy of human rights and promote international understanding in reaction to the Nazi tyranny. The court found further support for this interpretation by reading Article 1(3) in the context of other parts of the Basic Law. For example, Article 1(2) insists that “inviolable and inalienable human rights [are] the basis of every community, of peace and of justice in the world.” The court also noted that the Basic Law’s preamble, as well as Articles 24 and 25, anticipate the postwar constitutional regime’s cosmopolitanism.
The government had argued that, should the court conclude that the Basic Law applies in foreign contexts, then the basic rights should operate in that context only as a statement of objective values and not as subjective, enforceable rights for the defense of any particular individual’s freedom.
This argument draws on the dual role the court has assigned rights in the German constitutional scheme. Donald Kommers and I characterized those two roles in this way: “There is no doubt that the main purpose of basic rights is to protect the individual against the encroachment of public power … but it is equally true that the Basic Law erects an objective order of values in the section on basic rights that imposes on all organs of government an affirmative duty to see that the basic rights are realized in practice more generally.” The basic rights’ objective dimension only entitles a claimant to demand that the state provide the positive procedural and organizational safeguards needed to ensure the realization of those values. It says nothing about limiting the state’s interference with a liberty interest, as a subjective and defensive protection does. The objective mode of a right might allow the intrusive state activity to proceed so long as the state provides relevant institutions and resources to promote the fulfillment of the underlying value.
If the court reduced the foreign application of basic rights to only the “objective mode,” then foreigners such as the claimants in the BND Act Case would not be able to assert the basic rights as the basis of a subjective harm. But in its judgment last week the court rejected this approach and insisted that the constitution’s comprehensive commitment to basic rights—which places the individual at the center of the Basic Law’s project—demands the subjective and defensive application of the basic rights when German state authority is exercised, no matter where and no matter who is affected. Had the Basic Law intended the opposite conclusion, the court explained, then it might have bound the more abstract notions of “state authority” or “state power” to the basic rights in Article 1(3). Instead, that article binds the discrete, tangible exercises of state power—legislative, executive and judicial—without limitation.
The Constitutional Court seemed to decline to take a functional path like the one that Justice Kennedy pursued in the Supreme Court’s extraterritoriality jurisprudence. The Constitutional Court explained that the basic rights bind every form of German state power and every act through which the German state expresses its authority, even if it usually acts in a foreign context without the benefit of sovereignty or the monopoly on violence. All decisions of the state are covered by the Basic Law’s comprehensive commitment to basic rights.
The court explained that its expansive reading of the effect of the constitution’s basic rights protections corresponds with Germany’s integration into the world’s community of states. This is the result of the Basic Law’s commitment to an “open state,” which anticipates Germany’s immersion in international and supranational institutions (such as the U.N., NATO and the EU) and the alignment of its law with public international law norms (such as the European Convention on Human Rights). In other words, the basic rights complement and operate alongside the international human rights regime. The court found that by giving extraterritorial force to Germany’s basic rights, domestic constitutional rights can contribute to the advancement of a cosmopolitan agenda, especially the protection and respect owed to human dignity. The court described this arrangement as a “coupling” of the domestic basic rights and international human rights. This would be incompatible with the idea that the force of the basic rights ends at the border, the court argued. In fact, in the court’s estimation, this understanding of the basic rights is only more necessary today because of the exponentially increasing degree of global integration and the accompanying likelihood of increased state action beyond a state’s sovereign territory. This practical reality, the court said, demands the extraterritorial effect of the basic rights because respect for rights in that context might be the only means by which those exercises of state power are limited and legitimated. Foreigners, for example, do not participate in the democratic processes that control and give credibility to the state.
Finally, the court responded to the concern that giving the basic rights extraterritorial force risked imposing German constitutional norms and values on other communities. These were the concerns that kept the court from resolving the issue of foreign-foreigner surveillance in the G10 Act Case in 1999. This time around, the court appeared reassured that recognizing the extraterritorial effect of the basic rights would not be an act of chauvinism or foreign intrusion because the rights only cabin and control German state authority. The court explained that the application of the basic rights to foreign-foreigners “only reduces Germany’s room for decision” without touching another state’s guaranteed sovereignty or restraining another state’s power. The extraterritorial effect of the Basic Law does not extend German state power but only limits it. To this end, the court pointed to a number of intelligence regimes that also extend legal protections of some kind to foreigners, including the United States’s Foreign Intelligence Surveillance Act.
With the benefit of this analysis, the court reached its dramatic conclusion: “The basic rights of the Basic Law bind the BND, and the legislature charged with regulating the BND’s competences, regardless whether the BND is active domestically or in a foreign context. The protections of Article 10(1) and Article 5(1) apply to telecommunications surveillance of foreigners in a foreign context.”
There is only one qualification about the court’s extraterritoriality ruling worth mentioning. My analysis thus far has suggested that the court found that the constitution’s basic rights protections apply—as a general matter—to foreign-foreigners. But the court used narrowing language in Paragraph 88 of the judgment in a way that seemed to limit the scope of the extraterritorial doctrine it was announcing: “Das gilt jedenfalls für die Grundrechte als Abwehrrechte gegenüber Überwachungsmaßnahmen, wie sie hier in Frage stehen.” The term “jedenfalls” means “at least.” This passage appears in the English translation of court’s press release as the following: “At least Art. 10(1) and Art. 5(1) second sentence GG, which afford protection against telecommunications surveillance as rights against state interference, also protect foreigners in other countries” (emphasis added). The court famously labors over each word in its judgments in days-long conference sessions. It is fair to assume that the choice of the word “jedenfalls” was meant to limit the scope of the extraterritorial doctrine to only the specific circumstances of the case. What does this semantic choice mean? It might oblige the court to consider the possibility of extraterritoriality anew in future cases involving different constitutional rights and different state actions. This narrow characterization of the court’s holding is undermined, however, because the logic the court deployed in this case is sufficiently general that it likely would apply to most other cases, too.
Substantive Rights Protections
Having ruled that Articles 10(1) and 5(1) of the Basic Law apply to the BND’s strategic foreign-foreigners telecommunications surveillance, the court then assessed whether the amended BND Act satisfied those constitutional demands.
It is important to note, however, that this did not involve the more-or-less absolute calculus by which the U.S. Supreme Court approaches alleged violations of constitutional rights. This is not Dworkin’s “rights as trumps.”
Instead, the German Constitutional Court analyzes asserted violations of constitutional rights through the lens of the proportionality principle: a systematic framework for assessing the scope of a protected right, the nature of the state’s supposed intrusion on that right, and the integrity of the state’s justification for this intrusion. The final step in the Constitutional Court’s stylized proportionality analysis is a balancing of the interests involved. In this case, that entailed balancing the state’s interest in promoting security and informed governance, on one side, and the individual’s constitutionally enshrined interest in telecommunications privacy, on the other side. The purpose of this weighing is to find the sweet spot at which both interests are realized to the fullest degree possible.
This means that the court’s basic rights jurisprudence seldom leads to the outright condemnation of a policy on constitutional grounds. Instead, the court endeavors to articulate the subtle legislative corrections needed to salvage the law while maximizing the extent of protected individual freedom. This is famed German jurist Robert Alexy’s “rights as maximization principles.” Proportionality is now so entrenched as part of Germany’s constitutional scheme that it has been credited as a part of the constitutional guarantee of a German state governed by the rule of law (Rechtsstaat). Once a means for protecting constitutional rights, proportionality has itself become a constitutional mandate. This led one commentator to remark that “it is more the proportionality principle that serves as the crucial limitation of the legislative power than the fundamental rights themselves.”
The proportionality principle shaped the Constitutional Court’s decision in the BND Act Case. It subjected the amendments to the BND Act to its systematic proportionality analysis. And what was the result? On one side, the court concluded that strategic foreign-foreigner telecommunications surveillance is permissible. More than that, the court conceded that foreign espionage of this kind serves high-ranking constitutional interests, such as helping to safeguard democratic self-government and the broader constitutional order against threats made more dangerous by the speed and ubiquity of technology. On the other side, the court found that strategic telecommunications surveillance constitutes a significant intrusion on personal privacy interests. This is especially true of strategic telecommunications surveillance, as opposed to human or analog espionage, because it operates on such a broad scope and without circumstantial limitations. Above all, the court insisted that the harm done by strategic telecommunications surveillance is amplified by the fact that the intelligence-gathering practice draws from information produced by our use of highly invasive and omnipresent personal communication technologies. The court was reiterating its embrace, going back to the 1983 Census Act Case, of the mosaic understanding of privacy as it relates to technology and the internet Age. The information that can be acquired from the kind of surveillance at issue in this case, the court explained, touches “highly private and spontaneous communication processes reaching far into everyday life as well as the identification of interests, desires and preferences.”
In other words, the proportionality scale tips heavily on the side of the claimants’ privacy interests secured by Article 10(1) of the Basic Law.
The challenge for the court was to identify the many statutory refinements that allow an acceptable form of strategic foreign-foreigner telecommunications surveillance to go forward while still ensuring the fullest measure of the rights protection promised by the Basic Law.
The court had a string of precedent-setting security cases from the past 15 years to draw upon. These cases provide the contours of the applicable telecommunications privacy jurisprudence. Of course, that jurisprudence had to be adapted to the unique circumstances of strategic foreign-foreigner surveillance. But the content of this doctrine is familiar.
First, the court held that the authority to conduct surveillance should be more specifically articulated in the statute. This means that the law must call for a clear link between a surveillance operation and the aims of the BND’s mandate to gather foreign intelligence. It also means that the law must prohibit global, general surveillance. Only operations limited in volume and focusing on a specific geographic area are permitted.
Second, telecommunications surveillance should be authorized only to develop intelligence on specifically defined threats of great significance. The court defined the requisite threats in these terms: “These dangers must be of such nature and gravity that they can affect the position of the Federal Republic of Germany in the international community and, particularly for this reason, they must be significant to foreign and security policy. This would include threats posed by powerful, transnationally effective networks of organized criminals, externally directed cyber-attacks on important infrastructure, or acts of terror that appear to be intertwined with broader international conflicts.”
Third, the surveillance operations and the information collected must be broken down into formally determined and sufficiently specific classifications to promote the speediest possible analysis and use of the information. This requirement also enables effective oversight of the BND’s strategic foreign-foreigner telecommunications surveillance because it gives auditors, oversight bodies, and potential litigants an easy framework for identifying and assessing the BND’s foreign-foreigner targets and the telecommunications information the BND has acquired with that surveillance.
Fourth, the court noted that the relevant precedential canon demands that the BND must be prohibited from targeting specific individuals with these operations unless the agency’s focus is based on keywords provided in the statute. Here the court seemed to be responding to the parliamentary inquiry’s discovery that the BND had been using a large number of search terms—in some cases more than 400,000 of them—to direct its surveillance of telecommunications. The media reported that these keywords, often handed over to the BND by American intelligence services, targeted “European institutions, high-ranking political leaders and companies” by focusing on specific individual’s names, discrete phone numbers or particular IP addresses.
Fifth, the law must establish special restrictions for surveillance implicating particularly sensitive or confidential communications. These include “relationships of trust” that are connected with some professions, such as lawyers or journalists.
Sixth, the law must ensure respect for “core-areas of private life,” which the court says are owed inviolable protection. The court’s reference to the core-area of privacy invokes jurisprudence in which the court has held that Article 2(1) of the Basic Law consists in a spectrum of constitutionally protected personality and privacy interests, including a Kernbereichs der Persönlichkeit (core-area of freedom of personality). The core-area of privacy merits greater—perhaps even absolute—protection. From this framework the court has developed the “sphere theory” of the right to personality. This theory envisions three spheres of constitutional protection that coincide with various dimensions of the human-social condition. The innermost sphere of personal privacy and integrity is associated with human singularity and intimacy, “where feelings and thoughts are located.” This is the sacred core-area of personality that the court has described as the “last, inviolable area of private life that simply is not subject to any interferences by public authority.”
Seventh, all of these constraints on the BND’s collection of information must be backed up with a procedural regime imposing protocol, retention, deletion, and oversight rules and mechanisms.
I will not wade deeper into this detailed scheme. You can familiarize yourself with the character and content of this extremely detailed part of the court’s decision by reading my thorough study of the court’s BKA-Act Case (2016). In that case the court gave similar treatment to the Federal Criminal Police Office’s new and intrusive investigative powers. There, as here, the court demanded that these intrusive powers be limited only to the most serious circumstances, that the discretion to conduct surveillance be confined with greater specificity in the enabling statute, that analysis of the collected information be speedier, that the storage of the collected information be limited, that the most secret strata of life be given absolute protection and that the entire regime be subject to supervision.
Implications for Intelligence Partnerships
Two discrete elements of the court’s decision may be of particular interest to foreign policymakers and Germany’s intelligence partners. The court imposed limits on the BND’s transfer of information it collects and on its surveillance cooperation with other intelligence services.
The court found that the transfer of information constitutes a separate interference with guaranteed telecommunications privacy, in addition to the original intrusion by which the BND gathered the information in the first place. For this reason, a transfer must have an independent, clear and legal justification. Essentially, the court treats a transfer of information as a “hypothetical re-collection of data” (hypothetische Datenerhebung). That is, the transfer of the information is to be treated as a new (hypothetical) search in its own right. The point of this standard is clear: Subsequent use of information is not to serve as a back door around constitutional safeguards that would permit the analysis and use of information for purposes that would not have justified its collection from the start.
The hypothetical data re-collection standard need not be as strict when the transfer is to another part of the German federal government. It will be adequate that the information fulfills the BND’s mandate to provide the government with “politically relevant information.” But the court ruled that, for transfers of information to foreign intelligence services, the law must set strict standards to ensure that the subsequent use of the information respects the rule of law. This means that the intelligence-collecting law must require a case-by-case analysis of the foreign system’s protection of information privacy.
In mandating this language in a corrected BND Act, the court insisted that the legislature demand constitutional protections, to the degree possible, on both sides of the transfer: that undertaken by the BND in collecting the strategic foreign-foreigner telecommunications information, and that undertaken by the foreign intelligence agency to which the BND might deliver that information. The latter requirement has two facets. On the one hand, the law must carefully limit transfers due to concerns for privacy. On the other hand, the law must limit the use to which the information may be put by the receiving state even if a transfer is allowed. In both respects—transfer and the receiving state’s use of information—the court emphasized that the law must be guided by the interest in promoting human rights. Transfer to and use of information by foreign states must be excluded if the receiving state has a questionable human rights record or if there are concerns that the receiving state might violate fundamental elements of the rule of law. Above all, the court insisted, German state authority cannot lend a hand to human rights violations.
The court explained that the legislature can navigate the potentially competing demands of international cooperation and respect for basic rights by enacting the following principles in clear and specific terms: limit the transfer of personally revealing information to circumstances involving adequately important objectives that would satisfy the “hypothetical re-collection of data” standard; and require assurances that the receiving state’s use of transferred information—formally and practically—will respect the rule of law. A receiving state’s satisfaction of this standard, the court explained, should be determined by looking at the receiving state’s local law and the receiving state’s international law commitments—in both formal and practical terms. The court insisted that this assessment is not merely a political question. Instead, it must be a substantive legal decision, based on regularly updated information, and reviewable by the courts.
The court also placed constitutional limits on the BND’s cooperation with intelligence partners around the world with respect to the collection of strategic telecommunications surveillance. The court accepted that the Basic Law’s vision for Germany’s integration into the community of states might involve intelligence partnerships. But the court insisted that collaboration in collecting telecommunications information in the framework of international intelligence cooperation must conform to the constitution. Above all, this means that Germany’s intelligence cooperation must be guided by clear statutory authorization that ensures that the basic rights are respected.
Several concerns about international intelligence cooperation attracted the court’s attention. First, the court insisted that any constitutionally viable law prevent Germany from acquiring surveillance information about Germany and Germans from foreign intelligence partners that it would have been constitutionally precluded from collecting itself. Second, the court ruled that the Basic Law imposes on the German state the obligation to extend basic rights protection against intrusions on telecommunications privacy for everyone within Germany’s jurisdiction. This obligation holds true, the court held, even with respect to espionage and surveillance conducted in Germany by partner agencies. Third, the court imposed constitutional limits on the BND’s use of surveillance keywords and search terms provided by foreign intelligence partners. The court explained that the law must require that the German intelligence service assess these search parameters, and the results they produce, on its own authority. Like their German analogs, the surveillance parameters provided by foreign intelligence partners must satisfy the constitutional demands for a serious government interest and specificity. Fourth, the court demanded that the law call for greater protection of information derived from “relationships of trust” (such as doctors, journalists or lawyers) even if that information is acquired through intelligence cooperation. Finally, the court held that Germany cannot maintain continuous surveillance cooperation agreements with foreign intelligence partners. Instead, the law must limit these arrangements to individual surveillance operations justified by concrete situations involving grave threats.
The Constitutional Court’s BND Act Case judgment cast a thick constitutional net of rights restrictions far and wide across Germany’s foreign intelligence operations. The court ruled that the Basic Law applies extraterritorially wherever the German state exercises authority. It applied its well-developed privacy jurisprudence to the Federal Intelligence Service’s collection of strategic foreign-foreigner telecommunications information. And the court imposed limits on the BND’s engagement with partner intelligence services around the world. It would be fair to say that on each of these levels the Constitutional Court advanced a revolutionary vision of the state’s ancient prerogative to pursue foreign espionage. It demanded that the state’s life in the shadows be brought into the light of the law.
The Old Testament’s Joshua would have had a special appreciation for the compromises required by clandestine espionage. It is said that he was one of the 12 spies sent by Moses to surreptitiously survey the land of Canaan in anticipation of Israel’s conquest of the Promised Land. But 10 of those spies had little appetite for a military adventure in Canaan. Their reports emphasized the fact that Canaan was fortified by walled cities and defended by giant warriors. Hearing this news, the Hebrew people rebelled against Moses’s vision for a homeland far from their captivity in Egypt. Among the spies, only Joshua and Caleb looked past the bitter facts about Canaan’s defenses to cling in faith to the Lord’s sworn victory in Canaan. Caleb pleaded: “We should go up and take possession of the land, for we can certainly do it.” For their pessimism and lack of faith, the other 10 spies were struck dead with a plague. Only Joshua and Caleb survived. The Hebrew people’s selective—and perilous—embrace of the reports from Canaan is a reminder that sometimes a country only gets the intelligence it wants. The Constitutional Court has seen that fate will be the case for Germany.