Reporters Without Borders filed a constitutional complaint with the Federal Constitutional Court on Thursday against the legal basis for the use of so-called state Trojans by the Federal Intelligence Service (BND). The Bundestag anchored this power with the controversial law on the “adaptation of the constitutional protection law” in 2021 shortly before the new election in the Article 10 Law (G10). This allows extended source telecommunications surveillance (TKÜ): Agents can tap into the ongoing communication directly on the hacked end device before it has been encrypted or after it has been decrypted, as well as saved chats and emails.
Danger for investigative media workers and their sources
With the The German branch of Reporters sans frontières appealed (RSF) at the same time against a judgment of the Federal Administrative Court of January 25. With it the Leipzig judges dismissed a lawsuit by the civil society organization in the same matter as inadmissible. They complained that RSF had not sufficiently demonstrated its own concern. The implementation of the source TKÜ on the plaintiff’s own devices was not sufficiently specific. Nor is it sufficiently clear under what actual conditions RSF’s foreign communication partners could be exposed to such measures. In addition, the plaintiff did not contact the BND directly with his request for an injunction.
“In its current form, the German law for the protection of the constitution is a real danger for investigative media workers and their sources, and that worldwide,” counters RSF managing director Christian Mihr. Any journalist doing research in extremist circles could be monitored by the BND using state Trojans. Currently there is practically no possibility to defend oneself against it by legal means. The organization is therefore hoping for a fundamental judgment from Karlsruhe. The constitutional court must prevent the BND from penetrating journalists’ smartphones and computers with spyware and accessing encrypted messages themselves.
More lawsuits and a constitutional complaint
According to the RSF, it communicates regularly with foreign media representatives and government agencies. The organization therefore sees a real risk that the IT systems of its employees could also be spied on by state trojans by the BND. In this way, RSF would also put the communication partners at risk of being monitored. At a hearing before the Federal Administrative Court, BND representatives confirmed that the secret service uses state Trojans both in domestic-foreign and in foreign-foreign telecommunications reconnaissance. The judges did not allow a question as to whether this also applied to the particularly powerful Pegasus spyware.
The complainants also believe that data subjects cannot be required to obtain and trust some sort of no-spy declaration. RSF relies on the case law of the European Court of Human Rights. According to this, a widespread suspicion that a secret service is illegally monitoring people cannot be dismissed outright. Those potentially affected should at least have legal means to defend themselves. Further lawsuits by RSF, the whistleblower network and investigative journalists before administrative courts as well as a broader constitutional complaint by the Society for Freedom Rights (GFF) are pending against the source TKÜ powers for the secret services. RSF and GFF also called Karlsruhe in January about the reformed BND law.
(bme)
