The work of the Federal Intelligence Service (BND) abroad will be monitored in the future by an inspection authority set up especially for this purpose. This is evident from the draft for a new BND law, which is now being coordinated between the departments. With the approval of the Bundestag, the federal government wants to establish an “independent supervisory board” composed of six senior lawyers and about 25 employees to fully control the work of the BND. In contrast to the Bundestag’s Parliamentary Control Commission (PKGr), in which MPs exercise control, the new body will be a supreme federal authority.
The government complies with a decision of the Federal Constitutional Court. In May, following a constitutional complaint from foreign journalists, it decided that the German authorities must also respect fundamental rights abroad. That is why the judges obliged the BND to respect telecommunications secrecy and freedom of the press. Until then, foreigners could be tapped abroad without restriction.
According to the ruling, secret surveillance abroad is a serious intervention for those affected, but generally permitted. There is an overriding public interest “in effective foreign intelligence in the interest of the Federal Republic of Germany’s ability to act in terms of foreign and security policy,” the judges wrote, paying tribute to the work of the BND.
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At the same time, the Constitutional Court ordered the Bundestag to improve the law of the BND and strengthen control over BND’s strategic telecommunications intelligence abroad. Parliament must therefore determine how much and where can be checked.
The judges called for a powerful body with its own staff and budget. The jury members even indicated the number of employees. Until now, an “independent body” made up of three lawyers had overseen the BND’s strategic investigation. The government admitted this to the critics during the last BND reform in 2016. In doing so, she responded to whistleblower Edward Snowden’s revelations in the NSA scandal and to allegations that the BND had also targeted Germans when investigating data abroad.
The Karlsruhe plaintiffs saw the BND as a giant data octopus. And they had success with their constitutional complaint. Photo: dpa
The term strategic telecommunications intelligence describes the search of large data streams for relevant information without specific suspicion. According to the BND, about 154,000 communication relationships are registered daily, of which about 260 ultimately turn out to be relevant. Germans should not be controlled in this way. The BND therefore tries to organize their communication before evaluating the content. The design states: “In practice, the Federal Intelligence Service uses a multi-level automated filtering system to identify and irretrievably remove such traffic.”
However, the new committee should also examine smaller monitoring measures before they are implemented. In addition, it must be able to check all search terms used by the BND.
The partners are suspicious of the new specifications
BND partner services are likely to view the new rules with skepticism. The German Foreign Secret Service relies on information from the partners to clarify dangers, but it is usually only provided on the condition that it is not passed on to third parties. The task of the federal government, therefore, should now be to convince the partners that their information can be viewed by the Independent Control Council, but that it should not leave this top-secret committee.
Not only must the new law enter into force at the beginning of 2022, the new control structures and mechanisms must therefore be effective and well established. The judges of Karlsruhe put the Chancellery and the Bundestag under enormous time pressure.