German Court Rules Antiterrorism Laws Partly Unconstitutional

http://www.nytimes.com/2016/04/21/world/europe/germany-court-antiterrorism-laws-surveillance.html

Version 0 of 1.

BERLIN — At a time when Europe fears more terrorist attacks and the United States is urging European intelligence services to cooperate more closely, Germany’s highest court on Wednesday ruled that critical antiterrorism laws were partly unconstitutional and demanded tighter control over surveillance.

The ruling, in a 6-to-2 vote by the federal constitutional court, reflected a familiar desire to balance public safety against violations of privacy and the safeguarding of intelligence data — a characteristically German concern, forged by the experience of Nazi and Communist rule.

But the ruling also clashed with mounting public fear of a spreading scourge of jihadist terrorist attacks in Europe, where countries like France and Belgium are moving in the opposite direction and giving intelligence services greater latitude for surveillance.

The ruling may inhibit further the sharing of intelligence, which has already proved deeply inadequate in Europe and has been exploited by terrorist networks.

Interior Minister Thomas de Maizière of Germany, who has been among the most vocal advocates of closer European intelligence cooperation, said the verdict “does not make it easier to fight international terrorism.”

“How real the threat has become in Germany and Europe is shown by the dreadful attacks of recent times, particularly in Paris, Brussels and Istanbul,” Mr. de Maizière told reporters, referring to assaults that killed more than 140 people in the French capital last year, left 32 dead in Brussels last month and killed 12 Germans in Turkey in January.

The law examined by the constitutional court was enacted seven years ago, Mr. de Maizière noted. “Since then, the overall situation has gotten sharper,” he said.

He said the Interior Ministry would examine the ruling in detail before announcing further plans. The court gave the government until June 30, 2018, to make the law conform with Germany’s Constitution, known as the Basic Law. Until then, the law will stay in place as written.

When it was first passed, in 2009, the law was viewed as breaking important ground in giving the federal police the authority to prevent terrorism by conducting surveillance through wiretaps, recorded conversations, photographs and remote searches of computers. The preventive power had previously rested with Germany’s 16 states.

The constitutional court was ruling on suits brought by a former interior minister, Gerhart Baum, members of the Greens party, lawyers, a journalist and a doctor.

They had voiced concerns that covert surveillance, particularly in private homes and in the intimacy of bedrooms or bathrooms, could entangle innocent third parties. There were also worries that surveillance could violate professional confidence through the monitoring, for example, of conversations by suspects with their doctors or lawyers, or with members of Parliament.

“In some respects,” the court’s ruling said, “the current design of the investigative powers does not satisfy the principle of proportionality.” As a result, the provisions governing covert surveillance “are in part too vague and too broad,” it said.

It called for the creation of an unspecified “independent body” that would examine data before it was passed to the federal police, or to foreign institutions.

Ruling for the first time on the transfer of intelligence data to third countries, the court said that such transfers outside the 28-nation European Union must conform to the German Constitution.

“What is required is the guarantee of an appropriate, substantive level of data protection for the handling of the transferred data in the receiving state,” the ruling said.

The two judges who dissented from the majority decision said that the court had gone too far in trying to regulate surveillance and intelligence data, and that it should leave this to lawmakers.

“The Senate should not have set up such detailed requirements,” Justice Michael Eichberger wrote. “In weighing the latent threat posed by covert surveillance and investigative measures, it must be kept in mind that most of the challenged norms do not authorize a general collection of data affecting a wide range of persons.”

Justice Wilhelm Schluckebier wrote that the application of the proportionality principle was “constitutionally misguided in several respects.” In particular, channeling data through an “independent body” would most likely delay the relaying of information needed to prevent terrorism, he wrote.

Konstantin von Notz, a Greens legislator in federal Parliament and an intelligence expert, called the ruling “a blessing for the protection of our private sphere, and a blessing for the rule of law.”

Mr. de Maizière, the interior minister, said the government would decide whether to leave the law in place for more than two years, or to move within the current legislative term, which expires in fall 2017, to amend it.

“It is not easy to formulate laws which both observe the Constitution and allow security services to work,” said Michael Bauer, a terrorism expert at Ludwig Maximilian University in Munich.

He noted that Germany’s exceptional regard for privacy and data protection had led to previous clashes with the European Union, most recently over data storage. It was too early to say, he added, whether the ruling on Wednesday restricted cross-border cooperation on terrorism.

United States officials have called on Europeans to examine their many intelligence bodies and devise more effective, streamlined structures that many hope will close cracks that allowed several suspects in the Paris and Brussels attacks to pass unnoticed, even when security checks were in place on some of Europe’s largely open and porous borders.

On Wednesday, it was announced that security would be among the topics discussed when President Obama meets the leaders of Germany, France, Britain and Italy next week in Hanover, Germany.