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11/12/2016

Germany’s intelligence service reform stokes controversy

Justice & Home Affairs

Germany’s intelligence service reform stokes controversy

The reform of Germany's BND intelligence service has prompted concerns about uncontrolled mass surveillance and human rights breaches.

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Germany’s ruling coalition is to adopt a new intelligence law today (21 October). Concerns have been raised about the increase in the amount of surveillance that will be permitted by the new legislation. EurActiv Germany reports.

Angela Merkel’s CDU, their CSU partners and the SPD are set to adopt a reform today of the country’s foreign intelligence service, the BND. Many of its activities that have been hitherto illegal under German law will now be permitted. The service will be authorised to have access to DE-CIX, the German commercial data exchange, as well as being allowed to monitor Deutsche Telekom’s systems.

When these measures can actually be applied are governed by criteria that are very broad, making the practice difficult to control. According to the new legislation, the BND must be active in detecting “early threats to the domestic and external security of Germany”.

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Opposition politicians and society at large have been extremely vocal in their criticisms of the law. Moreover, journalist associations, human rights groups and three UN special rapporteurs have expressed serious concerns. According to the UN experts, the reform disregards international standards on human rights. It has been labelled a “threat” to the right to exercise freedom of expression.

“An entire fundamental right, i.e. the right to confidential telecommunication, has been de facto abolished by the BND,: said Ulf Buermeyer, a Berlin judge and fellow at Viadrina University’s Centre for Internet and Human Rights. “This marks a departure from the principle of targeted legal processes against individual suspects, towards a prophylactic surveillance of potentially all citizens.”

Intelligence work is a central task of the state and is essential in ensuring the security of the population. “In face of terrorist threats and a growing improvement in how those who threaten our freedom work together internationally, we need reliable working intelligence services, which can network internationally,” said Konstantin von Notz. The Green politician is a member of the Bundestag’s investigative committee on the NSA/BND. However, the BND is currently criticised for lacking this reliability.

A recent study by the Heinrich Böll Foundation highlighted shortcomings in the performance of the service. “The control bodies currently lack the capacity and expertise needed to carry out these activities (…) The BND reform offers the opportunity to tackle the effectiveness of intelligence work, which has been gradually weakening for years,” concluded the study. It also said that the BND had been “overwhelmed” by the amount of work it had been tasked with.

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The new law and the additional competences that come with the reform means that this work will only increase though. Moreover, the new control mechanisms that have been put into place will not be able to remedy those deficiencies. This new body will consist of two judges and a public prosecutor, which means that the already fragmented system of control will be broken up even further.

In theory, the reform will create “a three-class society in terms of telecommunication surveillance: first, German citizens, EU citizens, then other foreigners”, said Buermeyer. If an EU citizen is put under surveillance, then the chancellery must be informed. “In practice, however, these measures are unlikely to have any relevant betterment for people,” he warned.

Whether the law will even be signed off by the Constitutional Court remains up in the air, though. “The BND reform is not likely to be compatible with the country’s basic law,” Buermeyer claimed. Even Von Notz has his doubts about the legality of the reform once it is adopted by the Bundestag.

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