The European Court of Human Rights (ECHR) admitted a Reporters Without Borders (RWB) complaint alleging that individuals are not adequately protected against unfounded and unjustified mass surveillance by The German foreign intelligence service, the BND.
Admission of the complaint at European level opens up the possibility “of finally remedying this untenable abuse of law”, said Christian Mihr, executive director of the RWB, a international organization that represents the interests and safety of journalists around the world.
Mihr sees it as an encouraging sign that in May 2020 the German Constitutional Court ruled on the activities of the BND.The decision stated this the so-called strategic surveillance activities carried out by the intelligence agency are incompatible with the fundamental human right to privacy and freedom of the press.
Article 10 of the German constitutional guarantees the fundamental right to the protection of telecommunications confidentiality, which can only be limited in serious exceptions to protect Germany against armed attacks and acts of terrorism as well as cyber attacks, cross-border crime such as drug trafficking, money laundering and human trafficking.
High technology ‘strategic oversight‘
The BND is, in well-founded individual cases, authorized to restrict fundamental laws and freedoms. However, RWB members and supporters argue that the legal provisions which allow such intrusions are too broad.
They allege this the practice of exploiting Internet hubs using search terms called selectors amounts to baseless mass surveillance. the BND use this procedure to fish hundreds of millions of emails for what he considers suspicious information.
Internal communications within Germany, to which the country’s foreign intelligence service is legally prohibited from accessing, would be excluded from the trawling process. But how exactly this happens has yet to be plausibly explained by the BND.
Moreover, it is not clear whether the BND can Actually guarantee that he is still able to filter irrelevant telecommunications content. So the exact number of people who may be caught in the BND net without their knowledge remains unknown.
And this is precisely where Reporters Without Borders comes in – with its complaint to the European Court of Human Rights. If a victim of target or arbitrary surveillance never knew that they were the subject of an examination is implicated in the Strasbourg appeal act.
“What we do know is that in the last 40 years there has not been a single case in Germany where the measures taken by the BND have has undergone judicial review on the basis of such notification, ”said Reporters Without Borders in his statement to the European Court.
A large number of those affected do not even discover with hindsight that their emails have been filtered, the NGO explained.
Impact on the German legal system
The country’s Parliamentary Oversight Group publishes an annual report detailing thet monitoring measures have been taken. But this only becomes available after all protocol data has been deleted. In this way, the BND is obliged to document the mails which have been examined more closely found to have been excluded as not “intelligence relevant”.
Andre Hahn is a member of parliament, the Bundestag, for the German Left Party. He is also a member of the Parliamentary Oversight Group. And he considers the RWB complaint to be an “important step.”
The fact that it has been admitted by the European Court of Human Rights will, he says, lead to a review of current practice in German courts, according to which complaints against the mass surveillance of Internet traffic by the BND are repeatedly rejected on formal grounds; vsour in Germany, only admit complaints against mass surveillance if a complainant can prove that he or she was directly affected by the surveillance.
If the complaint lodged by Reporters Without Borders in Strasbourg is successful, the BND would in the future be obliged to inform the victims of the surveillance after the act.
RWB believes that for the first time they would be able to take legal action against espionage. RWB believes this would send a strong signal beyond German borders.
The “snowball surveillance strategies” adopted by the BND are not only a threat to the protection of journalists’ sources which is a central element of press freedom in a democracy. They also undermine the credibility of German demands on authoritarian regimes to respect press freedom, “thus depriving journalists in these countries of a lawyer in their fight against surveillance and other forms of repression.”
Reporters Without Borders is there is no doubt that she herself has been subjected to unwarranted surveillance by the BND in the past. As proof, the organization points in its complaint to figures dating from 2013. It was then that the whistleblower Edward Snowden revealed how the American National Security Agency (NSA) was spying on the Internet around the world. At that time, the NSA was indeed using the BND listening station in Bad Aibling in Bavaria as a subsidiary.
“Milestone for citizens’ rights”
The 2013 German Parliamentary Oversight Committee report found 12,523 search terms used to scan hundreds of millions of emails for suspicious content. Among which there were 15,401 so-called “hits”.
“What this means is the couriers which the BND said had to be manually examined because, for legal reasons, they probably should not have been intercepted in the first place. Among these “bycatch”, as they are called in secret service jargon, there were, in the final analysis, only 118 emails deemed “relevant for intelligence purposes.”
The resources invested and the intelligence obtained were, according to Reporters Without Borders, “grossly disproportionate”. And, having successfully challenged the BND’s strategic oversight activities, RWB intends to use his high international profile to find out how frequently he himself has been spied on – possibly with the aim of resorting to d ‘other measures.
Angela Merkel’s government in Berlin now has until the beginning of March to resolve the dispute amicably with the European Court of Human Rights.
This article has been translated from German.