BND Reform 2.0
Discussion Prompt: To what extent does Germany’s new BND draft bill provide a rights-based and modern framework for foreign intelligence?
In May 2020, the German Constitutional Court ruled that key provisions in the current legal framework on the German foreign intelligence service (BND Act) are unconstitutional and that the Bundestag has until December 2021 to rectify a long list of deficits. The basic premise of the Court’s judgement is that the right to private communication and the right to press freedom under Germany’s Basic Law are rights against state interference that ought to extend to foreigners in other countries, too. In its new foreign intelligence bill, German state authority must honor these rights not just with respect to its own citizens and residents but also with regard to non-nationals the world over.
Drafting a new legal framework for Germany’s foreign intelligence collection requires a substantial overhaul of the provisions on the surveillance of foreign telecommunications, on the sharing of intelligence thus obtained with other bodies, and on the cooperation with foreign intelligence services as well as the design of effective judicial and administrative oversight. Many legal, technical and political decisions that now need to be made are open questions in other countries, too. This concerns, for example, the mandate for bulk collection, oversight requirements, the rights and protections afforded to non-nationals, or special protections for journalists.
Does this BND reform 2.0 manage to protect both fundamental rights and security? And will it therefore see Germany enter the small club of liberal democracies paving the way for better rights-based intelligence conduct in the world or will it only be a matter of time before this reform, like its predecessor, will be squashed in court? With much at stake, the variety of perspectives featured in this panel is intended to provide answers to these questions and help both the members of the Bundestag and the general European public to form their opinion on a truly consequential piece of security legislation.
*If you wish to read an English language version of the draft law, please see the translation provided here.
The global significance of South Africa’s mass surveillance ruling
South Africa’s foreign SIGINT capabilities shut down.
Germany’s BND Act & recent CJEU case law
Some provisions of the draft bill seem incompatible with CJEU rulings.
Aspects where Germany’s draft Federal Intelligence Services Act misses the mark
The draft BNDG undermines requirements set by the Constitutional Court.
The unwanted reader: BND draft bill would continue the surveillance of journalists and their sources
The German government fails to secure essential journalistic protections.
The BND’s future foreign intelligence collection is likely to remain poorly overseen
The German Chancellery’s new draft bill ensures no oversight institution really knows what goes on at the BND.
Is SIGINT coming to an end?
The German foreign intelligence service must remain operational and internationally connected.
