To protect personal data and privacy, the Constitutional Court of Germany rejected some provisions of a law in Bavaria that extended powers to intelligence activities in home surveillance and localization tracking.
The Federal Constitutional Court on April 26 ruled that several provisions of the Bavarian Constitutional Protection Act is partially unconstitutional. Some powers granted to the intelligence agency of Bavaria violate fundamental rights.
The Bavarian State Office for the Protection of the Constitution, the state intelligence agency monitoring extremism in the Land, needs to have less power in order to respect individuals’ privacy and personal data.
In the law, conditions for audio and video surveillance of a private room are not clearly limited to averting immediate danger to public security, the Court in Karlsruhe found.
Similarly, observation of homes from the exterior, which is “particularly intrusive”, is not only limited to “anti-constitutional endeavors” but is applicable to activities that wouldn’t particularly require surveillance. For the Court, the current provisions don’t respect the “inviolability of the home”.
In another text shortcoming, computer and network surveillance is also incompatible with fundamental rights to privacy, and should only be permissible in the case of an identifiable danger.
The same goes for the use of undercover agents and informants, where limitations are not sufficiently specified. The law makes it too easy to use for too many potential targets and isn’t limited in time.
The Court also often points out the lack of an independent body controlling and approving covert surveillance measures.
Moreover, the article that allows tracking the localization of a mobile device is unconstitutional because the “power is so broad that it also allows long-term monitoring of the movements” of an individual.
The use of surveillance for security vs. data and privacy rights
Revised in 2016, the Bavarian Constitutional Protection Act has extended surveillance powers for its domestic intelligence agency. Criticized by several political parties, the new provisions only passed with the votes of the Christian Social Union in Bavaria party, close to the Christian Democratic Union of Germany (CDU).
The Society for Civil Rights (GFF), which supported the lawsuit, considers the ruling as a “landmark judgment”. It hopes the decision will also refrain other Länder from adopting similar legislation. The law could be adopted by other states and the Court decision will serve as a guideline.
The GFF, which seeks to protect human and civil rights like privacy and freedom of information, has a history of fighting state intrusion, according to its website.
The non-profit is also satisfied to see the judges ruling in favor of increasing walls between the surveillance agency and law enforcement in terms of data processing.
When Bavaria Interior Minister Joachim Herrmann defended the law in a court hearing in last December, he mentioned that sharing information between security authorities was needed to prevent terrorist attacks like the one that occurred at a Christmas market in Berlin in 2016.
The Court decision reinforces the idea that in Germany information and data collected by secret services can be passed on to officials or politicians who then decide on the actions to take, but there should not be direct transfer nor access of intelligence data by police and other law enforcement. A protection inherited against actions committed by Nazis, according to the GFF.
A constitutional complaint in Germany can only be filed by people whose rights are directly affected. Three members of the Association of Persecutees of the Nazi Regime were plaintiffs in the case. One of them, Harald Munding, considers that long-term surveillance that he may be subject to is a “stigmatization” and “intimidation policy”. The Bavarian intelligence agency qualifies the organization as “influenced by left-wing extremists”.
The ruling is not much about whether surveillance instruments can be used but rather about the conditions when they can be used. In a principle of proportionality, the more intrusive surveillance is, the more urgent the need must be the Court wrote.
The unconstitutional provisions need to be changed by July 31, 2023, and associated tools can only be used to a limited extent until then.
