Anti-terror laws partially unconstitutional

The German Federal Constitutional Court in Karlsruhe said on Wednesday that although secret surveillance powers given to the Federal Criminal Police (BKA) are in principle in line with the country's constitution, the current legal framework granting these powers does not satisfy the principle of proportionality.

In 2009, a law was passed granting the BKA the power to act preventatively against crimes relating to international terrorism. Previously, the BKA was responsible for law enforcement, with preventative measures assigned to state police forces. This included the ability to secretly conduct surveillance through recorded conversations or photographs, carry out wiretaps, or to remotely search computers. The appeal to the Constitutional Court argued that these preventative powers of the BKA went too far and intruded on the private lives of German citizens.

Provisions "too unspecific and too broad"

The court's ruling addresses these concerns without completely rejecting the law. Specifically, the court said "with regard to the legal requirements for carrying out covert surveillance measures, the provisions introduced in 2009 are in part too unspecific and too broad." It added that more clarity was needed in how collected surveillance data was shared with third parties. This referred to other German agencies as well as foreign authorities.

"[Parts of the law]lack supplementary rule-of-law safeguards, particularly safeguards protecting the core area of private life or guaranteeing transparency, individual legal protection and judicial review," the court said in a release accompanying the decision on its website.

The rules for transferring data lacked legal restrictions in several instances the court said, referring to data transfers to domestic and foreign authorities.

The law will remain in place

Due to the fact that the unconstitutional elements of the law did not pertain to the essence of the law itself, it will remain in place – including the objectionable provisions, subject to restrictions - until the end of June 2018.

Two of the eight judges in the court's first senate, Michael Eichberger and Wilhelm Schluckebier, offered dissenting opinions. Both men expressed concerns that the court was imposing regulatory framework rather than leaving the task to elected lawmakers. In addition, the two men argued that the objectionable portions of the law could be argued to be in line with Germany's constitution.