5 ms·

The article title is terrible; or, at least, incomplete without the subheading, but this is still very relevant to privacy: Germany's Constitutional Court rule

The article title is terrible; or, at least, incomplete without the subheading, but this is still very relevant to privacy: Germany's Constitutional Court ruled on Tuesday that monitoring the internet traffic of foreign nationals abroad by the BND intelligence agency partly breaches the constitution. And this paragraph provides more nuance: The ruling said that non-Germans were also protected by Germany's constitutional rights, and that the current law lacked special protection for the work of lawyers and journalists. This applied both to the collection and processing of data as well as passing on that data to other intelligence agencies. Essentially: The law as written does not sufficiently protect the constitutional rights of all human beings, so the intelligence service is directed to improve the law to provide enforceable protections as were found absent.

coliveira 6y ago
What a difference to the USA. The constitution there is not applied whenever some obscure official dims it necessary to spy on anyone (citizen or not) for "supposedly" national security reasons.
- linksnapzz 6y ago
  The US Constitution has been described as, and is routinely applied as though it is... "not a suicide pact".
AndrewKemendo 6y ago
"The ruling said that non-Germans were also protected by Germany's constitutional rights" That's a pretty big task if it's not heavily caveated. I'm curious how they manage conflicts around citizenship and constitutional reach then. I'd love to hear a German Constitutional scholar weigh in. If their constitution protects non-citizens does that mean that German police/military are required constitutionally to protect non-Germans from acts by non-German states or individuals? Are there any positive rights in the German constitution (like a right to be provided legal counsel) that a non-German citizen could "charge" the government for so to speak? It seems based on this interpretation that someone from - say Nicaragua - could claim that the Nicaraguan government is in violation of German constitution and the German government would be obliged to provide counsel to the Nicaraguan citizen.
- DasIch 6y ago
  The German constitution explicitly distinguishes between humans and citizens. So no, this is not a big task. It’s not a task at all.
- mytailorisrich 6y ago
  Indeed, as I mentioned in another comment, many of these human rights issues are pandora boxes.
- KarlKemp 6y ago
  The US constitution, and really any constitution, also offers some protections for non-citizens. To wit: the word 'citizen' does not appear once in the first ten articles of the Bill of Rights. Morally, and really from a PR standpoint as well, anything else would have been impossible even at the time of the framers. If you are known for your declaration of "all men being created equal" and possessing "certain inalienable rights" you can't really turn around and say "no, sorry, you're an alien". Voting or residing in the United States isn't generally among the universally recognised human rights and can be separated from, for example, the right to a (fair) trial. Without that, foreigners on US soil, and you everywhere else on earth, would have absolutely no protection and could literally be executed on the whims of some Sheriff or prosecutor. The use of drones for targeted executions is a strangely useful example showing this: only because non-citizens are protected in general did the US need to come up with the fantasy that is its "unlawful combatant" construction.
- Tomte 6y ago
  > If their constitution protects non-citizens Only some basic rights are afforded to non-citizens. Others are so-called "German basic rights" and only apply to citizens. (And by some legal machinery these rights are extended to EU citizens.) > protect non-Germans from acts by non-German states or individuals Obviously not. How on earth could you even think that? This ruling is about what the BND, a German government authority, does. It does not apply to foreign secret services like the CIA, it does not apply to foreign civil entities like Amazon, it does not apply to imagined entities like the Illuminati. > It seems […] When your reasoning leads to prima facie faulty results, you should examine your premises.
mytailorisrich 6y ago
This sounds very much like another instance of unintended consequences triggered by good intentions. We're seeing this more and more on many topics linked to human rights where things stemmed from a good intention but resulted in sweeping and far-ranging consequences. Here for example I don't see how anything good in practice can result from this decision. I'm sure that the BND already has procedures to decide who to spy on, both because of operational and political concerns. Adding more restrictions based on "human rights" really only impede operations when they should be nimble and might push them more underground, i.e. with less oversight. My guess is that they'll find a way to have a procedure and paperwork in order to follow the letter of this decision but that in practice nothing will change at all because that would harm national interests.
- ketzu 6y ago
  If I get your last point correctly, it implies that state spy agencies should not be restricted by laws, because it will make them ignore those laws and undermine oversight. But oversight is worthless with that premise anyways, because there aren't any laws restricting the agency.
  - mytailorisrich 6y ago
    You are not getting my point correctly. Spy agencies are restricted by laws and should be restricted by laws. But it should be sensible taking into account the reality of what these agencies are and do, and not based on idealism. Their purpose and what they do has not changed and will not change because of this decision because there is a need to protect national interests and that is not achieved by being a boy scout. Therefore they will try to find a way to get around it as much as possible, be it in the drafting of the new law or in practice.
    - jacobr1 6y ago
      It is the classic tradeoff: regulation vs. banning for "unsavory" practices. This is perhaps easier to see with drugs, gambling, and sex-work. And of course, it gets more complicated because, within broad categories, specific practices maybe be banned even within a regulatory framework.
msla 6y ago
This seems like a serious handicap. Luckily spy organizations have no experience being secretive about what they're doing.

coliveira 6y ago

What a difference to the USA. The constitution there is not applied whenever some obscure official dims it necessary to spy on anyone (citizen or not) for "supposedly" national security reasons.

linksnapzz 6y ago
The US Constitution has been described as, and is routinely applied as though it is... "not a suicide pact".

AndrewKemendo 6y ago

"The ruling said that non-Germans were also protected by Germany's constitutional rights" That's a pretty big task if it's not heavily caveated. I'm curious how they manage conflicts around citizenship and constitutional reach then. I'd love to hear a German Constitutional scholar weigh in. If their constitution protects non-citizens does that mean that German police/military are required constitutionally to protect non-Germans from acts by non-German states or individuals? Are there any positive rights in the German constitution (like a right to be provided legal counsel) that a non-German citizen could "charge" the government for so to speak? It seems based on this interpretation that someone from - say Nicaragua - could claim that the Nicaraguan government is in violation of German constitution and the German government would be obliged to provide counsel to the Nicaraguan citizen.

DasIch 6y ago
The German constitution explicitly distinguishes between humans and citizens. So no, this is not a big task. It’s not a task at all.
mytailorisrich 6y ago
Indeed, as I mentioned in another comment, many of these human rights issues are pandora boxes.
KarlKemp 6y ago
The US constitution, and really any constitution, also offers some protections for non-citizens. To wit: the word 'citizen' does not appear once in the first ten articles of the Bill of Rights. Morally, and really from a PR standpoint as well, anything else would have been impossible even at the time of the framers. If you are known for your declaration of "all men being created equal" and possessing "certain inalienable rights" you can't really turn around and say "no, sorry, you're an alien". Voting or residing in the United States isn't generally among the universally recognised human rights and can be separated from, for example, the right to a (fair) trial. Without that, foreigners on US soil, and you everywhere else on earth, would have absolutely no protection and could literally be executed on the whims of some Sheriff or prosecutor. The use of drones for targeted executions is a strangely useful example showing this: only because non-citizens are protected in general did the US need to come up with the fantasy that is its "unlawful combatant" construction.
Tomte 6y ago
> If their constitution protects non-citizens Only some basic rights are afforded to non-citizens. Others are so-called "German basic rights" and only apply to citizens. (And by some legal machinery these rights are extended to EU citizens.) > protect non-Germans from acts by non-German states or individuals Obviously not. How on earth could you even think that? This ruling is about what the BND, a German government authority, does. It does not apply to foreign secret services like the CIA, it does not apply to foreign civil entities like Amazon, it does not apply to imagined entities like the Illuminati. > It seems […] When your reasoning leads to prima facie faulty results, you should examine your premises.

mytailorisrich 6y ago

This sounds very much like another instance of unintended consequences triggered by good intentions. We're seeing this more and more on many topics linked to human rights where things stemmed from a good intention but resulted in sweeping and far-ranging consequences. Here for example I don't see how anything good in practice can result from this decision. I'm sure that the BND already has procedures to decide who to spy on, both because of operational and political concerns. Adding more restrictions based on "human rights" really only impede operations when they should be nimble and might push them more underground, i.e. with less oversight. My guess is that they'll find a way to have a procedure and paperwork in order to follow the letter of this decision but that in practice nothing will change at all because that would harm national interests.

ketzu 6y ago
If I get your last point correctly, it implies that state spy agencies should not be restricted by laws, because it will make them ignore those laws and undermine oversight. But oversight is worthless with that premise anyways, because there aren't any laws restricting the agency.
- mytailorisrich 6y ago
  You are not getting my point correctly. Spy agencies are restricted by laws and should be restricted by laws. But it should be sensible taking into account the reality of what these agencies are and do, and not based on idealism. Their purpose and what they do has not changed and will not change because of this decision because there is a need to protect national interests and that is not achieved by being a boy scout. Therefore they will try to find a way to get around it as much as possible, be it in the drafting of the new law or in practice.
  - jacobr1 6y ago
    It is the classic tradeoff: regulation vs. banning for "unsavory" practices. This is perhaps easier to see with drugs, gambling, and sex-work. And of course, it gets more complicated because, within broad categories, specific practices maybe be banned even within a regulatory framework.

msla 6y ago

This seems like a serious handicap. Luckily spy organizations have no experience being secretive about what they're doing.