Unlimited powers with limited oversight? – The German Bar Association’s stance on the planned reform of the intelligence services

A participation of associations that was only seemingly intentional

At the beginning of July, the draft bill was initially published as a ministerial draft and forwarded to the associations – including the DAV – for comment. The associations were given just six full working days to comment on a draft running to more than 700 pages. Such a deadline makes it virtually impossible to conduct a serious examination that does justice to the scope and implications of the draft.

Nevertheless, in view of the draft’s significant constitutional shortcomings, the DAV’s Committees on the Right to Information and on Internal Security Law felt compelled to draw up a comprehensive and well-founded response that takes due account of the scope and significance of the proposal. As the draft has yet to be debated in the Bundestag, there is still an opportunity to take the concerns raised during the consultation process into account in the further legislative proceedings.

From the DAV’s perspective, constitutional concerns relate in particular to the principle of separation of powers, the protection of client confidentiality and the structure of the Independent Supervisory Board.

‘Protective measures’ and ‘extended intelligence measures’: the worrying erosion of the principle of separation

From the very inception of the German intelligence services, a strict principle of separation has existed between them and the police authorities. Whilst the Federal Intelligence Service (BND) and the Federal Office for the Protection of the Constitution (BfV) were authorised to gather information, operational powers have hitherto been reserved solely for the police authorities.

According to the draft bill, this is set to change fundamentally.

On the one hand, Sections 59 et seq. of the draft Federal Office for the Protection of the Constitution Act (BVerfSchG-E) establish comprehensive operational powers for the BfV, even if these are somewhat inconspicuously referred to as ‘protective measures’. With the exception of the use of direct force against persons, the BfV is permitted – pursuant to Section 59(2)(1) of the draft BVerfSchG – to use any form of coercive force against ‘objects’, be it ‘force against property’ or the use of force against non-physical objects. For this purpose, it is sufficient, amongst other things, if, pursuant to Section 59(1), second sentence, No. 2, in conjunction with Section 51(1), No. 2 of the Draft Federal Constitutional Protection Act (BVerfSchG-E), the disclosure is precluded by ‘overriding security interests’ – an exceptional circumstance which, given that classification is at the discretion of the BfV, is likely to be the rule rather than the exception from its perspective.

On the other hand, Sections 49 et seq. of the BNDG-E also grant the BND comprehensive executive powers under the heading of ‘extended intelligence measures’. The limit on ‘active intervention’ pursuant to Section 49(1), first sentence, of the BNDG-E is, according to Section 51(3), second sentence, of the BNDG-E, the targeted interference with a person’s life or physical integrity. According to the explanatory memorandum to the bill, this means that only ‘targeted injuries or killings’ are excluded (p. 562), but not, for example, collateral damage that is accepted as a consequence.

The resulting abandonment of the strict principle of separation is diametrically opposed to the very reason why the far-reaching surveillance powers of the German intelligence services have hitherto been constitutionally justified.

For the authorities responsible for the protection of the constitution, the justification, according to the Federal Constitutional Court, is linked to the fact that “the information obtained from surveillance may not be passed on without further ado to other authorities with operational follow-up powers (‘principle of informational separation’)”. Otherwise, ‘the fact that the constitutional protection authorities lack operational follow-up powers would lose its protective effect’ (Federal Constitutional Court, judgement of 26 April 2022 – 1 BvR 1619/17, para. 171).

The Federal Constitutional Court has also emphasised the necessity of the principle of separation with regard to the Federal Intelligence Service (BND). With regard to strategic telecommunications surveillance, it stated that “the consequences of carrying out such surveillance without cause are somewhat mitigated by the fact that it is carried out by an authority which itself, in principle, has no operational powers” (Federal Constitutional Court, judgment of 19 May 2020 – 1 BvR 2835/17 –, BVerfGE 154, 152–312 (LT 1–8), para. 165).

The protection of client confidentiality: more the exception than the rule

Section 22 of the draft BND Act (BNDG-E) and Section 32 of the draft Federal Constitutional Protection Act (BVerfSchG-E) are designed to protect lawyers and other professionals bound by professional secrecy in their confidential relationships. From a legal practitioner’s perspective, this is essential for the protection of client confidentiality. Regrettably, the provisions largely fail to achieve their intended protective effect due to extensive exceptions.

1. Section 22 of the Draft BNDG

   Under Section 22(1) of the BNDG-E, the collection of personal data ‘for the purpose of specifically obtaining’ data from a relationship of confidentiality involving pastoral carers, lawyers, defence counsel, journalists and elected representatives is prohibited.

   In future, it will no longer be necessary for the lawyer concerned to be the perpetrator of or a participant in a criminal offence. Rather, under Section 22(2)(1)(c) of the BNDG-E, a connection to a ‘significant threat’ within the meaning of Section 3(1) in conjunction with Section 2(2) of the BNDG-E is to be sufficient. As a typical example, the provision cites the scenario in which the legal professional “receives or passes on communications intended for, or originating from, a person referred to in sub-paragraphs (a) and (b)”.

   This is particularly problematic for the legal profession, as the role of a solicitor is precisely designed to involve communication even with persons who may themselves be the subject of state investigations or intelligence surveillance. In particular, there is concern that, when communicating with persons who may have committed criminal offences or with politically sensitive clients, the BND can always assume that it will gain intelligence. However, a lawyer cannot and must not become a mere object of surveillance simply because they are fulfilling their professional duty and providing legal assistance to a client.

2. Section 32 BVerfSchG-E

   Pursuant to Section 32(1) of the draft BVerfSchG, a measure is inadmissible “if it is likely to yield information in respect of which that person would be entitled to refuse to give evidence”. However, under paragraph 4, this protection does not apply if there are factual indications of the professional’s involvement in the threats under investigation. According to the explanatory memorandum to the Bill, the term ‘person concerned’ is to be ‘understood in the context of the law on the prevention of threats’ and therefore also covers mere ‘messengers’ (p. 326). It is irrelevant whether the lawyer acting as a messenger is aware of the connection to the threat.

   The problem with this is that receiving and passing on information is a standard part of a lawyer’s work. The exception in paragraph 4 thus undermines the protection of client confidentiality.

   Overall, the draft fails, within the framework of Sections 22 BNDG-E and 32 BVerfSchG-E, to establish an adequate level of protection for the legal profession and client confidentiality.

The Independent Supervisory Board: an authority understaffed and lacking in expertise

The expectation that a significant expansion of the intelligence services’ powers would also entail an expansion of the underlying oversight mechanisms is certainly not unfounded. However, the Independent Supervisory Board (UKRat) – which is set to assume overall responsibility in future for the oversight previously carried out jointly by itself, the Federal Commissioner for Data Protection and Freedom of Information (BfDI) and the G10 Commission – does not meet these expectations. Rather, this is an authority that is understaffed and lacks the necessary expertise, and which, at best, is only able to monitor the intelligence services in a piecemeal manner.

The DAV’s criticism centres primarily on four points:

1. The UKRat consists of a ‘court-like supervisory body’ – a designation that is, in fact, misleading given the procedural structure of the supervisory body. Firstly, in the context of the prior review of intelligence service measures – assuming they are even made aware of the measure at all – the individuals concerned are given no opportunity to assert their interests in these proceedings. This contradicts the adversarial procedure characteristic of a court. The right of petition under Section 38 of the UKRatG-E cannot remedy this lack of legal protection: a mere duty to examine without legal consequences is insufficient in light of the requirement for effective legal protection under Article 19(4) of the Basic Law.
2. The ‘administrative supervisory body’ of the UKRat is, pursuant to Sections 33 and 34 of the UKRatG-E, responsible for issuing a notice of objection in the event of legal infringements. However, it lacks the express power to actually remedy the infringement that has been identified. The legislature must therefore face the criticism that it has created a ‘toothless tiger’ in the form of the ‘administrative supervisory body’.
3. The UKRat’s oversight of legality proves to be incomplete. This concerns, above all, its scope of application, which, pursuant to Section 2(1) of the UKRatG-E, is limited to the processing of personal data. This fails to recognise that measures with significant implications for fundamental rights may already lie in the very nature of their technical or operational implementation.
4. The concentration of powers within the UKRat should necessarily have entailed a proportionate increase in resources – yet this has not been the case. A comparison of the UKRat’s annual budget of 8.86 million euros with the BND’s budget of 1.5 billion euros (a factor of approximately 170) suggests that the UKRat is understaffed. Furthermore, the draft leaves open the question of how the legal and technical expertise built up to date by the BfDI is to be adequately replaced.

The DAV’s statement, comprising more than 50 pages in total, is available on the website of the German Bar Association.