By December 2016, the most significant intelligence reform in recent German history was finally on the books. It took more than a year of secret negotiations and a brief legislative process to codify important new rules about the practice, authorization and oversight of foreign data collection by the Bundesnachrichtendienst (BND), Germany’s foreign intelligence agency.
The paper informs readers about the key changes to German intelligence law and depicts the political context surrounding the reform. It reviews its main achievements and discusses its constitutionality and substantial shortcomings as the author sees them. For example, the reform sets new international standards in regard to the authorization procedures now required for the surveillance of non-national data and the legal requirements for Germany’s participation in international intelligence cooperation. For the first time, there now exists a distinction between German nationals, EU nationals, and the rest of the world when it comes to restrictions on signals intelligence (SIGINT).
At least de jure, Germany now requires the authorization of almost all strategic surveillance measures by a panel of jurists. The reform places much of the BND’s foreign communications data surveillance on a legal footing but did not fix the country’s woefully inadequate judicial oversight system. If anything, the reform paved the way for further retreat of judicial oversight in Germany. Its investment in more parliamentary oversight is a necessary but not a sufficient response to the astonishing breadth of intelligence governance deficits left unaddressed. While the reform’s provisions on the targeting of fellow Europeans and international intelligence cooperation are important steps in the right direction, they are also too weak to actually rein in the German spymasters.