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Germany: Powers of Federal Intelligence Service Expanded

(Nov. 18, 2016) On November 4, 2016, the German Bundesrat, the constitutional body through which the German states participate in the legislative process, approved an act to expand the powers of the Federal Intelligence Service (Bundesnachrichtendienst, BND) to gather signals intelligence from foreign targets located abroad (“foreign-foreign signals intelligence gathering”) and to cooperate with foreign intelligence services in these matters. The German Bundestag (parliament) had adopted the act on October 21, 2016. The new law, which is called the Act for Foreign-Foreign Signals Intelligence Gathering of the Federal Intelligence Service, amends the Act on the Federal Intelligence Service. (Stellungnahme des Bundesrates, Entwurf eines Gesetzes zur Ausland-Ausland-Fernmeldeaufklärung des Bundesnachrichtendienstes [Opinion of the Bundesrat, Draft Act for Foreign-Foreign Signals Intelligence Gathering of the Federal Intelligence Service], Deutscher Bundesrat: Drucksachen und Protokolle [BR-Drs.] 430/16 (Beschluss) (Sept. 23, 2016); Gesetzentwurf der Fraktionen der CDU/CSU und SPD, Entwurf eines Gesetzes zur Ausland-Ausland-Fernmeldeaufklärung des Bundesnachrichtendienstes [Draft Act Submitted by the Parliamentary Groups of the CDU/CSU and SPD, Draft Act for Foreign-Foreign Signals Intelligence Gathering of the Federal Intelligence Service] (July 5, 2016), DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-Drs.] 18/9041.)

The law will enter into force following signature by the Federal President and publication in the Federal Law Gazette. (Basic Law for the Federal Republic of Germany (May 23, 1949), Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1, as amended, art. 82, GERMAN LAWS ONLINE (unofficial English translation).)

Background

The BND reports directly to the Federal Chancellery and is generally the only intelligence agency authorized to gather foreign intelligence. It collects and analyzes information that is of importance for German foreign and security policy. (Gesetz über den Bundesnachrichtendienst (BND-Gesetz – BNDG) [Act on the Federal Intelligence Service], Dec. 20, 1990, BGBl. I at 2954, 2979, as amended, §§ 1, 2; Federal Intelligence Service Act, BND website (unofficial English translation (extract) (last visited Nov. 16, 2016).)

The adoption of the legislation was prompted in part by the “NSA affair,” in which the German intelligence services were criticized for supplying the U.S. National Security Agency (NSA) and other foreign intelligence services with data on telecommunications activities, allegedly without a proper legal basis. New legislation for the German domestic intelligence service, the Federal Office for the Protection of the Constitution, had entered into force on July 30, 2016. (Jenny Gesley, Germany: Act to Improve Anti-Terror Information Exchange in Force, GLOBAL LEGAL MONITOR (Sept. 8, 2016).)

Overview of the New BND Law

The Act codifies the legal basis to explicitly allow the Federal Intelligence Service to conduct foreign-foreign signals intelligence gathering to fulfill its mandate. (Gesetzentwurf der Fraktionen der CDU/CSU und SPD, art. 1, no. 4, § 6.) A BND analyst can only use search terms (“selectors”) to gather intelligence. Selectors may refer to people, organizations, or subjects. (Id. art. 1, no. 4, § 6, ¶ 2.)

The Act includes special protections for European Union citizens, EU institutions, and public institutions of the EU Member States. (Id. art. 1, no. 4, § 7, ¶ 2.) In addition, searches that violate the core area of a person’s private life, in particular his or her intimate and sexual life, are not permissible, and any data of that nature must be deleted immediately. (Id. art. 1, no. 4, § 11.)

Authorizations by the Federal Chancellery for foreign-foreign signals intelligence gathering are subject to oversight and approval by a new Independent Body (Unabhängiges Gremium). The Act provides that the Federal Chancellery has to inform the Independent Body before an authorization can be implemented. (Id. art. 1, no. 4, § 9, ¶ 4.) The Independent Body will consist of two judges and a federal prosecutor from the Federal Court of Justice (Bundesgerichtshof, BGH), as well as two alternate members. (Id. art. 1, no. 4, § 16, ¶ 1.)

Cooperation with Foreign Intelligence Services

The Act includes detailed provisions to regulate the cooperation, participation in common databases, and data exchanges with foreign intelligence services. (Id. art. 1, no. 4, §§ 13-15; no. 12, §§ 26-30.) Details of the cooperation between intelligence agencies have to be recorded in a memorandum of understanding (MoU). Cooperation is only allowed if it is necessary to achieve the goals of the foreign-foreign signals intelligence gathering and if the information can only be obtained in this way. (Id. art. 1, no. 4, § 13, ¶ 2.) MoUs can only be concluded for the purpose of gathering information on international terrorism, illegal trafficking of weapons of mass destruction and war weapons, or developing foreign crises; to support the German Armed Forces and cooperating states; to assess the security situation of German nationals and nationals of cooperating states; and to gather information on political, economic, or military developments abroad that could have an impact on German foreign and security policy, and on similar cases. (Id. art. 1, no. 4, § 13, ¶ 4.)