Consequences of the German Constitutional Court’s Ruling on Germany’s Foreign Intelligence Service: The Importance of Human Rights in the Cooperation of Intelligence Services

Abstract

In 2020, Germany’s Federal Constitutional Court made a groundbreaking decision on foreign surveillance by the Federal Intelligence Service, the Bundesnachrichtendienst (BND). The Court’s first central finding was that the protection of fundamental rights is not limited to German territory. In addition, the ruling declared unconstitutional the regulations governing the transfer of information to foreign intelligence services. The ruling will therefore also have consequences for the cooperation of intelligence services, making it relevant abroad as well. In the ruling, the Court focused primarily on the role of human rights and ruled that the BND must check whether its cooperation partners respect human rights. The German parliament was given the task of implementing the Court’s demands. The law adopted in response to the Court’s demands came into force at the start of 2022. This article analyzes the ruling and the new law, and addresses the question what concrete requirements must be placed on the BND’s cooperation with foreign intelligence services.