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Germany's Federal Constitutional Court has rejected a necessary, but technically unsound, law to combat terrorism. Now it needs to be improved. Everyone should be satisfied with this ruling, writes DW's Marcel Fürstenau.
At first, this may sound comforting: Secret surveillance measures against terrorism threats are "in principle compatible with basic rights." Nevertheless, the law must be revised as the Federal Constitutional Court of Germany considers it disproportionate "in various respects." One consolation for the German Federal Criminal Office (BKA) is that it may continue to apply powers granted in 2009 in limited form. Thus, no one has to worry about suspected terrorists being able to circulate freely. As always, suspects must assume that they are being extensively monitored, anytime, anywhere, and even where they may feel safe: in their own homes.
Spying in private spaces in itself is not unconstitutional but the "toolbox" provided to the BKA is. The list of shortcomings is very long. Some examples are: There is a lack of regulations for secret audio and video recordings, tracking devices and the use of undercover agents. In order to implement these measures, there must be a strong likelihood that a suspect, based on their behavior, "will commit a terrorist act in the near future."
The message: Be more meticulous with the laws
Accuracy is an obvious requirement that legislators ignored, despite warnings that had been formulated by constitutional lawyers and privacy advocates. Thus, the Federal Constitutional Court's decision deserves credit. If you read between the lines, the message is: Please exercise more care when working out particularly sensitive laws. This message was repeatedly heard when the verdicts were read, for instance, for the so-called Aviation Security Act, which allows hijacked airplanes to be shot at. Luckily, this was overturned by the highest court.
Generally, the verdict contains points that criticize the BKA law and they have already been mentioned in other decisions. They relate to privacy, data protection, transparency and surveillance methods: in a nutshell, the civil rights and liberties of a democratic society. In this context, it is worth noting that the panel of judges have looked beyond Germany. With regard to the current law, it comes as no surprise that they have denounced an overly casual exchange of information between German security agencies.
Groundbreaking verdict for cooperation with other countries
This time, the Federal Constitutional Court goes even further: In future, lawmakers must ensure the protection of basic human rights in data transmission and that the rights do not "deteriorate when receiving and processing data illegally retrieved by foreign authorities." It is right to associate this part of the verdict with controversial German intelligence collaborations with foreign partner services. Even the current NSA/BND (German Intelligence Agency) affair is related. There is no question that laws were interpreted loosely in this cooperation, as revealed by whistleblower Edward Snowden. A new version of the BND Act has already been proposed by the German government.
The legislative and executive branches should thank the Federal Constitutional Court for setting the record straight in its verdict on the BKA law. It is about effective counterterrorism measures, while respecting human rights in the broadest sense. In other words, the right balance between security and freedom must be struck. Now, there is a pragmatic recommendation on how to carry out this admittedly difficult task.
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