Fighting the NSA in the German Constitutional Court

-- By ThomasStreinz - 06 Mar 2015

In absence of any political will by the German government to take meaningful steps against the intrusion by the NSA on the private life of German citizens, I am looking at the German Constitutional Court (Bundesverfassungsgericht) for relief. My confidence in the Court is nurtured by its post-war legacy of fundamental rights protection, especially with regard to privacy. The Snowden revelations challenge this legacy but they also provide for a chance for the Bundesverfassungsgericht to establish itself as the leading fundamental rights protector in Europe in light of the growing competition by the European Court of Justice and the European Court of Human Rights. Naturally, I will also address the limits of such a jurisprudential approach but I believe it is the best shot we have in Germany.

The German Post-War Legacy of Protecting Privacy

The German Constitution, the Grundgesetz, is in large parts a reaction to the totalitarian practices of the Nazi government. It contains a full-fledged fundamental rights catalogue which is enforced by the Bundesverfassungsgericht. While Article 10 protects the privacy of correspondence, posts, and telecommunications, Article 13 echoes the castle doctrine (“a man’s home is his castle”). Where the Bundesverfassungsgericht deemed the constitutional protection insufficient in light of technological and social developments, it developed its own jurisprudence to protect the fundamental rights of German citizens.

This is exemplified by the famous Volkszählungsurteil in which the Bundesverfassungsgericht struck down the federal Census Act of 1983. The Court combined Article 1 (human dignity) and Article 2 (general liberty) of the German Constitution to form a new fundamental right, the right of informational self-determination (Recht auf informationelle Selbstbestimmung). The Court’s reasoning is strikingly topical as the Court recognized that all data matters. Even seemingly irrelevant information can become relevant if taken together and viewed in context. The government interest in obtaining information about its citizens by census did not override the right of the individuals to decide themselves which personal information should be available to the government.

The 1983 decision set the tone for the next decades. In 2001, the Court put limits on the computer aided search for wanted persons. In particular, it declared that mere fear of terrorist attacks (without substantial indications) was not sufficient to launch full-scale searches. In 2004, the Court restricted the listening practices of the German police. Under German law, a warrant is always required and the core of the private life (i.e. people having sex) needs to be protected at all times. In 2008, the Court created yet another fundamental right based on Articles 1 and 2 of the Grundgesetz, according to which the state has to respect the confidentiality and integrity of IT systems. The Court struck down provisions in North Rhine-Westphalia which allowed the police to use Trojan horses to access information on private computers without a judicial order. In comparison with the protection that is currently offered by the 4th Amendment in the United States, the German constitutional system is looking pretty good.

In Light of the Snowden Revelations

However, the Snowden revelations beg the question how much this constitutional protection is worth after all. The fact that the NSA does gather potentially all information while German authorities are restricted tarnishes the legacy of thirty years of fundamental rights protection by the Bundesverfassungsgericht. Two reactions are imaginable. One is to surrender and to acknowledge that it does not make any sense to place restrictions on the German authorities when the NSA gathers the information anyway. The other is to fight the NSA by means of the German constitution.

Surmounting Legal Hurdles

The second approach runs into obvious legal hurdles but I would argue that they are surmountable.

While the NSA is not directly bound by the German constitution, the German authorities are. As Snowden revealed, the NSA does not (always) act on its own but cooperates with intelligence agencies around the globe, including the German Bundesnachrichtendienst (BND). Arguably, any cooperation by the BND with the NSA amounts to complicity in fundamental rights violations as long as the NSA collects data which the BND is not entitled to collect under German law.

Another hurdle relates to standing. Under German law — as under US law — one needs to show that one was subject to an adverse effect by the action in question. The German Federal Administrative Court (Bundesverwaltungsgericht) declared an action inadmissible in which a German attorney claimed that the BND violated its fundamental rights by accessing his emails because the attorney was unable to prove that the BND had gathered his emails. This judgment should be reversed in light of the Snowden revelations. We can assume that all emails are gathered. Litigants should push for a shifting of the burden of proof.

Finally, there is the question of remedies. The Bundesverfassungsgericht cannot order the NSA to stop its practices. What it can do, is to order the German government to end all cooperation with US intelligence agencies as long as these agencies operate in Germany in a way that violates the fundamental rights of German citizens.

Political Change Through Courts

In recent years, the Bundesverfassungsgericht has emerged as the prime venue for political debates in Germany. The rescue packages for Greece hardly faced any resistance in the German parliament as Chancellor Merkel could rely on party discipline to push her policy through. Thanks to the constitutional challenge, we got the presentation of pros and cons we should have had in the first place. I would hope for a similar effect when anti-surveillance cases reach Karlsruhe. This could also help to keep the general public interested in the fight for privacy.