
German intelligence can't spy on foreigners outside Germany - dgellow
https://www.dw.com/en/german-intelligence-cant-spy-on-foreigners-outside-germany/a-53492342
======
floatingatoll
The article title is terrible; or, at least, incomplete without the
subheading, but this is still very relevant to privacy:

 _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.

~~~
AndrewKemendo
"The ruling said that non-Germans were also protected by Germany's
constitutional rights"

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.

~~~
chki
I'm not really a German constitutional scholar but I study German law and am
somewhat specialized in constitutional and international law.

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.

~~~
fit2rule
.. so, please correct me if I'm wrong, but this leaves open a loophole for the
CIA/NSA monitoring stations within Germany - which are not possessions of the
sovereign government - to continue to spy on anyone they like, as the German
government has just washed its hands of any responsibility for that.

~~~
chki
If you speak German you might be interested in this article regarding the very
similar case of the US Base Rammstein located in Germany, which is used for
drone strikes in the middle east [https://verfassungsblog.de/ramstein-
deutschlands-mitverantwo...](https://verfassungsblog.de/ramstein-deutschlands-
mitverantwortung-fuer-voelkerrechtswidrige-drohnenangriffe/)

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)

------
k__
Funny, considering that the job of the BND is collecting information from
foreign countries.

~~~
nwellnhof
The headline is misleading. The court only ruled blanket internet surveillance
illegal.

~~~
dgellow
Yes, I considered submitting the link with a better title than the article’s
one. Though I wasn’t sure if that would be or not against the rules.

Maybe dang can update it with something more to the point.

~~~
floatingatoll
That's permitted by the rules if you think that the alteration is justified.
If you're worried about being censured, you can include a comment on your new
post "The original title was XYZ I altered it because reasoning ABC", so that
if the mods are looking at it later, they understand your reasoning and can
offer you a followup reply.

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FearNotDaniel
Of course it can. Perhaps it _may_ not. But that doesn't mean it won't.

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KarlKemp
My partner works at the NGO and was part of the team that brought, fought, and
won this case
([https://freiheitsrechte.org/english/](https://freiheitsrechte.org/english/)).
Happy to (try to) answer any questions.

------
elchin
The article makes it look like Germany shared data with Azerbaijan - was that
the case?

~~~
dgellow
The quoted person from the article says that they had issues with surveillance
from the Azerbaijan services, as a example of a bad state of affairs. There is
not implications of data being shared, in fact she says the opposite.

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."

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LatteLazy
Nice to see a court that cares about a constitution...

------
AaronFriel
Soon: Six Eyes

~~~
aey
Afaik Germany is not part of 5 eyes or 9 eyes. There seems to be a tiny bit of
ww2 era resentment there.

~~~
squiggleblaz
Isn't that point of the "6 eyes" comment? Theirs would be be the sixth.

~~~
KarlKemp
That.. doesn't make much sense? The whole point is to prevent the outsourcing
of illegal surveillance.

In any case, the BND suddenly became a lot less attractive for any
intelligence-sharing deals.

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ngcc_hk
Is this "can't spy" or just a directive to improve and protect foreigner?
Also, they are spy. No one like spying but it is a necessity. In fact,
sometimes you cannot let other country be told directly you "inform" their
spy! Not sure why they are not allowing to do their job by their own
constitution? Limits definitely needed internally, but externally?

