W&L Law’s Miller Examines Ruling on Limits of Foreign Surveillance
In a new essay published at LawFare, Washington and Lee law professor Russ Miller discusses the recent ruling by the German Federal Constitutional Court limiting the country’s intelligence services. The court ruled that Germany’s spies must conform their conduct to the commands of the German Grundgesetz (Basic Law or constitution) even when their operations only involve foreigners in a foreign context (“foreign-foreigner” espionage).
“The Constitutional Court’s BND Act Case judgment cast a thick constitutional net of rights restrictions far and wide across Germany’s foreign intelligence operations. The court ruled that the Basic Law applies extraterritorially wherever the German state exercises authority. It applied its well-developed privacy jurisprudence to the Federal Intelligence Service’s collection of strategic foreign-foreigner telecommunications information. And the court imposed limits on the BND’s engagement with partner intelligence services around the world. It would be fair to say that on each of these levels the Constitutional Court advanced a revolutionary vision of the state’s ancient prerogative to pursue foreign espionage. It demanded that the state’s life in the shadows be brought into the light of the law.”