Improvements to Regulations on Intelligence Services Needed

Ralf Poscher at Bundestag hearing on the BND Act

November 20, 2023

A number of experts, including Freiburg legal scholar Ralf Poscher, have criticized the draft bill presented by the German federal parliament (Bundestag) to amend the law of the Federal Intelligence Service (Bundes­nach­rich­ten­dienst, BND). At a Bundestag hearing, Poscher ex­plained that segments of the new regulations have failed to meet constitutional requirements.

In a September 2022 ruling, the Federal Constitutional Court had declared several provisions of the Act Reg­u­lating the Cooperation between the Federation and the Federal States in Matters Relating to the Pro­tec­tion of the Constitution and on the Federal Office for the Pro­tec­tion of the Constitution (Bundes­ver­fas­sungs­schutz­gesetz) to be unconstitutional. The subject matter pri­mar­ily concerned the question of when intelligence services are permitted to pass on data to agencies with police powers. The ruling made an amendment to the federal law absolutely necessary.

According to the German government, the draft bill is intended to comprehensively reform intelli­gence law. In particular, the regulations on the transmission of information obtained by intelligence services are to be adapted to the stipulations of the Federal Constitutional Court.

At the hearing of the Committee on Internal Affairs on 6 November 2023, however, the invited experts pointed out that the specifications of the Federal Constitutional Court had not yet been sufficiently heeded. Ralf Poscher explained that the constitutional requirements have been com­plied with in the regulations on data transfer to domestic authorities with powers in security mat­ters. But the regulations on the transfer of data for the administrative protection of legal interests still do not meet the constitutional requirements: both the point of reference and the reason for (data) transfer are not in line with the requirements of the Federal Constitutional Court.

“If the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) is to be enabled to transfer the personal data of individuals to authorities with enforcement powers, independent of a specific threat, in order to contain merely abstract dangers and to strengthen resilience, then the circle of authorities and grounds can hardly be narrowed down. Consequently, a number of the provisions (...) are vague and undefined, which raises additional doubts as to their constitutionality,” says Ralf Poscher in his expert opinion.

He used the following example to illustrate the possible scenarios that could result: “The intel­li­gence services could then inform school principals about the activities of their pupils, universities about the activities of their students, employers about the activities of their employees, and so on, even if they do not pose any concrete or even substantiated threat.”

Ralf Poscher is Director at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg/Germany where he heads the Department of Public Law. He is also an honorary professor at the University of Freiburg.

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