The German Constitutional Courts Rules That the Constitutional Right to Privacy Extends to Foreign Internet Users

On May 19, 2020, the German Constitutional Court held that the constitutional right to privacy of telecommunications extends to foreigners in other countries.

At issue before the Court was the 2016 law governing the country’s Federal Intelligence Service (BND).  In the current form, the law permits the BND to gather, evaluate, and share data generated by the communications between non-Germans outside the country.  A coalition of media and activist organizations challenged the BND’s dragnet collection and storage of telecommunications data arguing that privileged communications between lawyers and clients, as well as sensitive communications involving sources and journalists may be swept in and made accessible by the government.

The Court concluded that the privacy rights in the German Constitution protect foreigners in other countries and that the BND had no authority to conduct unrestricted telecommunication surveillance on them.  The Court found that the existing dragnet surveillance was not restricted to sufficiently specific purposes and thereby structured in a way that allows for oversight and control and was lacking safeguards to protect journalists and lawyers.  With respect to the transfer of data, the Court noted the lack of a limitation to sufficiently weighty legal interests and of sufficient thresholds as requirements for data transfers.   Thus, the Court concluded that the provisions governing cooperation with foreign intelligence services do not contain sufficient restrictions or safeguards.  Furthermore, the Court found that the BND’s  powers also lack an independent oversight regime to control the surveillance process.

The Court, however, concluded that if designed in accordance with the principle of proportionality, the strategic telecommunications surveillance of foreigners in other countries is, in principle, compatible with the fundamental rights of the German Constitution.

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