Discussion Prompt: Which of the many deficits should German legislators tackle in the pending reform to ensure the effective implementation of human rights as well as the principles of the rule of law and democracy?
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This article makes the case for a new legal framework for the Independent Control Council (UKRat – ICC). It scrutinizes the deficiencies with the current practice of judicial oversight over Germany’s foreign intelligence collection. Further, it advocates for an expanded mandate for the ICC to examine the lawfulness and proportionality of intelligence collection beyond SIGINT. This piece aims to spark dialogue and action towards ensuring a better governance and safeguarding of basic rights and freedoms amidst a rapidly evolving practice of intelligence.
This text focuses on the current deficits and the opportunities for reform when it comes to the legal framework and the practice of judicial intelligence oversight in Germany. It argues that the forthcoming reform of the German intelligence law presents a unique opportunity for advancing fundamental rights. This could be done, among other things, through the establishment of a new legal framework for the Independent Control Council (UKRat, henceforth ICC).
The practices of intelligence collection are evolving rapidly. They often infringe upon the right to privacy and other fundamental rights and freedoms which requires a more robust legal framework to limit potential violations and to ensure independent and effective oversight. In theory, the ICC is a powerful guardian of basic rights and freedoms. In practice, however, the ICC is plagued by a number of key deficits. Prior to discussing its current shortcomings, we will briefly introduce the ICC and its present mandate.
Origins, legal framework, and scope of the ICC
As a supreme federal authority in Germany, the ICC holds the responsibility to examine the legality of the Federal Intelligence Service’s (BND) bulk collection of foreign intelligence. Its origins trace back to a landmark decision by the Federal Constitutional Court in May 2020, which extended basic rights to not only German citizens but also foreign nationals abroad. This decision mandated the creation of an independent oversight body to safeguard these rights.
At present, the ICC’s mandate is confined to auditing only a limited set of the BND’s surveillance practices, namely strategic foreign telecommunications interception and intrusions into the information technology systems of foreign nationals abroad. Its mandate is also not placed on a singular legal footing of its own but part and parcel of the law governing the BND.
Extending the ICC’s mandate to meet evolving challenges
Numerous federal intelligence activities that interfere deeply with fundamental and human rights are currently still exempt from effective judicial oversight. Given that the mandate of the ICC captures only a fraction of the different modes of intelligence collection that are currently practiced – not just by the BND but also by the other entities tasked with intelligence collection at the federal level –, it is imperative to extend the ICC’s mandate.
Following a recent decision by the German Constitutional Court, an entire segment of additional modes of intelligence collection requires independent prior approval. More specifically, the Court called for necessary changes to the oversight concerning privacy-intrusive activities such as residential surveillance, online searches, the use of informants, and mobile phone tracking.
Other intelligence service activities also necessitate more comprehensive oversight and should be subject to effective scrutiny: the collection and processing of metadata pose similar privacy concerns as content data – especially when using algorithmic analysis tools. The European Court of Human Rights considers this data to be just as worthy of protection and has called for limits and necessary control requirements for the collection and processing of metadata. Currently, the BND Act does not meet these standards, and the protection of fundamental rights is significantly lower when metadata is collected and processed compared to content data.
Further, the acquisition of personal data by intelligence services through unregulated purchases and “freely accessible” datasets poses threats to fundamental rights, requiring protective measures to ensure both proportionality and data quality.
In addition, military intelligence, akin to intelligence services, equally encroaches upon fundamental rights but lacks a sufficient legal framework, compounded by the major absence of effective independent control mechanisms. More specifically, unlike for the intelligence services or law enforcement agencies, there is no adequate legal basis for the collection and processing of data in the context of military intelligence. Article 87a of the Basic Law, which the Federal Government invokes as the main legal basis for the armed forces’ surveillance activities, does not even begin to meet these criteria. The Federal Constitutional Court requirements for safeguarding fundamental rights in state surveillance are absent in military intelligence, found only in internal regulations of the Federal Ministry of Defense. Important guidelines and structures for effective independent control of government actions in this area are also lacking. Currently, there is no permanent parliamentary oversight, nor an independent body for prior legal scrutiny. The audit activities of the Federal Commissioner for Data Protection and Freedom of Information (BfDI) appear to have limited effectiveness, at least as far as publicly recognizable.
To mitigate these shortcomings, it is imperative to expand the ICC’s scope of competencies and mandate, enabling a comprehensive and inter-agency oversight framework that leverages the agency’s ample budget and skilled staff.
Further needs to improve the ICC’s effectiveness and transparency
At present, the ICC is also handicapped by a series of deficits related to its practice of judicial oversight. For example, according to a Member of the ICC, the body’s review of the legality of surveillance warrants lack depth due to key information shortages. More specifically, the oversight professional argues that the German legal framework “lacks a central element for the question of the proportionality of the state’s request for information at the time of the preliminary review by the ICC: the number and circle of those potentially affected by the measure cannot be assessed at the time of the preliminary review” (own translation).
In addition, the two entities of the ICC which are meant to ensure the legality of surveillance warrants and the legality of data appear not to be sufficiently in sync with one another. While the judicial oversight body conducts pre-emptive legality reviews, the administrative oversight body monitors the actual implementation of previously confirmed orders and oversees aspects that are not under the judicial body’s jurisdiction. Out of frustration that these deficits were not being sufficiently addressed, two out of six judges from the judicial oversight body of the ICC decided to quit their job.
In comparison, neighbouring states’ oversight bodies like the Danish Intelligence Oversight Board have made significantly more advanced efforts to create the administrative and technological basis needed for more effective and close-knit monitoring. Legislative changes should ensure seamless and direct communication between the judicial body and administrative control, allowing officers to access expertise effortlessly, address specific queries on monitoring measures, and participate in review meetings as needed.
Further, German intelligence law lacks an effective right of appeal for individuals affected by strategic intelligence measures abroad, contrasting with standards set by the European Convention on Human Rights. Unlike other countries, such as the USA or UK, Germany also fails to offer foreign nationals a procedure to exercise their right of appeal, as emphasized by the European Court of Human Rights. Establishing an independent body committed to fair trial principles is essential, even though member states have leeway in designing such procedures. A fundamental aspect of fair trial involves the careful consideration of arguments from the respective stakeholders during court proceedings before reaching a decision. It is proposed to introduce such adversarial procedure to align with the judicial review process of the ICC. This allows stakeholders like lawyers to advocate for the interests of affected groups. Ideally, their involvement should extend beyond consultation during decision-making, potentially including roles in a new complaints office and providing administrative legal oversight. Additionally, considering claims for damages, similar to the British Investigatory Powers Tribunal, would ensure a comprehensive and fair framework for addressing surveillance grievances.
Finally, while the ICC reports to the Parliamentary Oversight Panel (PKGr) on its activities at intervals of no more than six months, it should be required by law to also provide regular reports to the public. This allows the ICC to enhance transparency to maintain legitimacy and trust in intelligence services and supervisory bodies while respecting the legitimate need for secrecy. Following the example of the comprehensive reporting practice by the Toetsingscommissie Inzet Bevoegdheden in the Netherlands, which includes detailed information on reviewed applications and rejected applications along with reasons for rejection, can provide the public with a better understanding of the general activities of an oversight body, including its role in the interpretation of central authorization norms of the intelligence law. The legislator could also ensure that the legal development of the ICC is adequately documented in these reports in the future. The practices of other countries show that, at least in principle, these measures do not stand in the way of the legitimate protection of secrecy.
Conclusion
In times of geopolitical upheaval and aggression, the role of German intelligence services and military intelligence in defending our open societies and democracies is paramount. Amidst the anticipation of upcoming intelligence law reforms, concerns arise regarding potential constraints on surveillance powers. However, balancing security imperatives with safeguarding fundamental rights is crucial, and it is only through constant and genuine efforts at intelligence accountability that our democracies can credibly reject unconstrained electronic surveillance by authoritarian regimes. To unequivocally distance ourselves from authoritarian states, it is essential to enshrine in law and rigorously implement the protection of fundamental and human rights.
The parliamentarians who will soon deliberate on additional surveillance reform should seize the opportunity to overcome known deficits and to extend the ICC’s purview to encompass all relevant intelligence activities – not just the BND’s foreign intelligence collection via SIGINT. It is also time to write key surveillance safeguards resulting from recent national and European jurisprudence into the German legal framework. In doing so, the reform will provide more effective protection for German citizens and foreign nationals against disproportionate government surveillance.