Verfassungsrechtliche Grenzen der Routinefernmeldeaufklärung durch den Bundesnachrichtendienst

This article analyzes the limits arising from German constitutional law that ought to be respected by the Federal Intelligence Service (Bundesnachrichtendienst) when conducting intelligence activities targeting the communication between foreigners in a foreign State (Strategische Fernmeldeüberwachung). This issue has recently attracted widespread attention in the context of the work of the commission of enquiry established by the German parliament (Bundestag) in order to investigate the extent and background of intelligence activities undertaken by foreign intelligence services on the territory of the Federal Republic of Germany. It is essentially argued here that the intelligence activities concerned do regularly not constitute an exercise of effective control over foreign persons and/or territory, and that the basic rights of secrecy of telecommunications and to informational self-determination codified in Article 10 and Article 2 paragraph 1 in conjunction with Article 1 paragraph 1 of the German Constitution (Grundgesetz) are therefore not applicable in their specification as individually enforceable rights to be protected from the State. Rather, in light of limitations arising from public international law, in particular the principles of sovereignty and non-intervention, the Grundgesetz only requires the Bundesnachrichtendienst, being part of the German executive, to observe the objective duty to protect that is contained in all basic rights when operating abroad. In this respect, the institutions of the State enjoy a broad scope of discretion in deciding how to fulfil and implement this constitutional duty to protect. The crucial threshold is that appropriate measures must be taken that provide for a careful handling of personal data that have been collected in the process of intelligence activities abroad. The Bundesnachrichtendienst is thus strictly bound to the principle of confidentiality, and it must be ensured by law that it is subjected to effective supervision by the competent supervisory body, i.e., the Federal Chancellery (Bundeskanzleramt). Even if one would accept for the sake of argument that intelligence activities targeting the communication between foreigners in a foreign State would affect the scope of protection of the subjective right of secrecy of telecommunications under Article 10 Grundgesetz, this article submits that there would still be no interference with this right in situations where the gathered personal data is irrevocably deleted after having been evaluated and analyzed. Where an interference exists (because the data is stored after its evaluation), it is, depending on the circumstances of the individual case, possible to justify the encroachment upon the right of secrecy of telecommunications on the grounds of the Grundgesetz, which contains an indirect authorization of foreign State-related activities of the Bundesnachrichtendienst. Acting on the assumption that intelligence activities targeting the communication between foreigners in a foreign State would have to be measured against the requirements of the right of secrecy of telecommunications in its occurrence as individually enforceable right to be protected from the State (quod non), the Artikel-10-Gesetz can be relied upon as the necessary legal basis for the activities concerned, which would furthermore have to meet the standard of proportionality. In contrast, if one agrees with the line of argument advocated here that the relevant intelligence activities must only comply with the more general duty to protect, the BND-Gesetz in its present form constitutes a sufficient legal basis. Thus, in contrast to what has recently been argued elsewhere, the Bundesnachrichtendienst does not operate in a legal vacuum.