Germany’s highest court has ordered Berlin to rewrite its anti-terrorism laws after ruling unconstitutional some surveillance powers granted to federal investigators seven years ago.
The constitutional court in Karlsruhe was asked to examine powers that allowed the federal criminal police (BKA) to spy on suspects round the clock with hidden cameras and secret microphones in their home, including in the bathroom and bedroom.
The new powers also allowed the surveillance of contact persons, even if they were not a direct suspect, as well as the use of phone taps and remote searches of computers using specially developed “Trojan Horse” software.
Complainants to the court argued that these preventatives powers intruded on the private lives of ordinary Germans and exceeded the competences of the federal criminal police (BKA).
Leading the complaint was Gerhart Baum, a former interior minister in Bonn. He sees in the law an attempt to transform the BKA into a German FBI, lifting a post-war ban on a central criminal police force following the disastrous Nazi-era experience with the Gestapo.
Until 2008, he argued, the BKA was a co-ordination office between investigations in Germany’s 16 federal states, with only limited direct involvement in their investigations. But the 2009 law handed terror prevention competences to the BKA, and with it powers previously reserved for intelligence services.
“This law brings onto authorities’ radars people who have nothing to do with terrorism,” argued Mr Baum. “An all-round surveillance is being introduce that overshoots the target and is not necessary for fighting terrorism.”
‘Disproportionate intrusion’
The court declined to follow his complaint and dismiss the law entirely, saying it was broadly in line with the constitution. However, all but two judges took issue with the covert surveillance measures, ruling them “disproportionate intrusions” into citizens’ lives.
The provisions were “in part too unspecific and too broad” and “lack supplementary . . . safeguards” in four cases: to protect privacy, ensure transparency, secure individual legal protection and judicial review.
As well as ordering Berlin to limit these measures, the court demanded greater clarity in how collected surveillance would be shared with third parties, including other German investigating agencies and foreign authorities.
Because the court found the law constitutional in its essence, judges allowed it to remain on statute books until the end of June 2018, or until the problematic passages are corrected.
Federal interior minister Thomas de Maizère said he took note of the ruling and would make the changes as requested. But with an eye on recent Islamic State attacks in Paris and Brussels, he warned that the security situation had become more grave since the law was introduced.
“I do not share the court’s concerns,” he said, “and they will not make the fight against international terrorism any easier.”
