Two Steps Back? Germany’s Revised Foreign Intelligence Service Law Is Still Hurting Press Freedoms

[Henning Lahmann is a Senior Researcher at the Digital Society Institute ESMT Berlin.]

Back in May, the German Federal Constitutional Court (the Court) held that the law for Germany‘s Federal Intelligence Service (Bundesnachrichtendienst, BND) was unconstitutional in its current form due to insufficient legal protections for journalists who are not citizens and who work outside of Germany’s borders against surveillance measures, a judgment widely lauded for its expansive and progressive reading of the extra-territorial scope of civil and human rights guarantees. Not to let the BND end up operating without a valid legal basis – in accordance with the Court’s decision, the legislature is under the obligation to pass an amended law by the end of 2021 – the Federal Chancellery has moved quickly to produce a new draft to address the constitutional shortcomings.

Alongside further especially protected professional groups such as attorneys and clerics, the new draft bill provides that journalists‘ conversations with their sources will from now on enjoy an explicit and general protection of confidence (i.e. a prohibition of surveillance measures by the BND) irrespective of the involved individuals‘ nationality and whereabouts, apart from exceptional situations in which the surveillance would reasonably expected to contribute to solving certain explicitly enumerated grave criminal offences (for example terrorism, organised crime, or acts targeting critical infrastructures). Whether such an exceptional case exists will be determined by a newly established independent oversight panel prior to the actual implementation of any surveillance measures, a prospective mechanism that constitutes the most immediate and supposedly most consequential legislative reaction to the Court‘s decision.

At the same, the draft‘s accompanying recitals explain that only such persons fall within the scope of the new legal protection whose work is characterised by “freedom and independence”, as otherwise the specific constitutional guarantees of the freedom of the press are in fact not justified. According to the drafters, this is inter alia supposed to exclude individuals who “deliberately produce fake news under the pretext of journalism in order to influence the German citizenry with destabilising effects at the behest of a foreign power”. Crucially, this determination as to whether a certain target of surveillance measures is a “real journalist” in this sense will be made by the BND itself “on the basis of informed assessments”, and is not subject to the external review mechanism of the new independent oversight panel.

To be fair to the drafters, the notion that not all kinds of media activities that claim to be journalism are necessarily protected against surveillance measures by the constitutional guarantees of Article 5 of the German Basic Law (as well as Article 10 ECHR and Article 19 ICCPR) was directly lifted from the text of the Court’s judgment (para. 196). Nevertheless, the government’s understanding as expressed in the draft’s recitals gives rise to some troubling questions from the perspective of international human rights law, the direct relevance of which for the interpretation of the scope of the civil rights as enshrined in the German Basic Law was repeatedly emphasised by the judges (see paras. 93 et seq.).

The rationale for such a limited reading of the right’s protective scope is obvious enough. Alarmed by the possibility of coordinated information operations in the run-up to the 2017 federal election and a growing number of similar reports of state-led campaigns targeting democratic decision-making processes all across the globe, it is certainly understandable that the country’s foreign intelligence service should have the legal capacity to uncover and monitor such conduct. Moreover, the problem of disinformation in the media has vastly increased since the onset of the COVID-19 pandemic, and amid the sustained crisis, Germany’s 2021 federal election will lead to the inauguration of a new chancellor for the first time since Angela Merkel assumed office in 2005. Still, this threat perception should not lead to a revised law that once again tackles the issue at the expense of the freedom of the press.

One perhaps less egregious problem with the drafters’ legal considerations is the rather imprudent use of “fake news” as the ostensibly principal threat to democratic institutions. For a variety of reasons, the term has been mostly abandoned by researchers and policy analysts who deal with the topic in favour of a more precise distinction between mis-, dis-, and malinformation. Not only has the notion been dismissed as unhelpful, ambiguous, and misleading, more crucially, it has evolved to become a throwaway rhetoric tool cherished by less than democratically-minded politicians to deligitimise critical media or to discredit opponents.

More serious from the perspective of international human rights law is the fact that pursuant to the proposed amendment, the BND will be in the position to make unchecked decisions as to who counts as a “legitimate journalist” deserving of constitutional protections, and who is a mere impostor undermining public trust in democratic institutions by way of spreading disinformation on behalf of a foreign power. In view of the underlying consideration, the draft bill appears to be based on an inadequate understanding of the mechanics of contemporary state-led information operations, to the detriment of international human rights guarantees. First of all, it is unclear what kind of relationship between a journalist’s work and the adversarial state actor the drafters imagine to be sufficient in order to speak of the activity as being carried out “at the behest” (“im Auftrag”) of a foreign power. Does this imply the need to show that the journalistic conduct is attributable to the state in accordance with Article 8 of the ILC draft articles on Responsibility of States for Internationally Wrongful Acts, which requires that the journalist is “in fact acting on the instructions of, or under the direction or control of, that State”? Or does any kind of tenuous connection suffice for the person to forfeit legal protection in the eyes of the BND?

As Bellingcat’s Aric Toler has shown, disinformation campaigns rarely unfold by way of specific governmental orders. Despite a proven track record of attempting to sow discord and confusion by distorting the information ecosystems in other states, not every Russian media outlet acts on direct instructions by the Kremlin even in cases in which the government’s and journalist’s views align. The illiberal political climate notwithstanding, newspapers and websites retain a considerable degree of autonomy, especially if the coverage is directed at foreign audiences, and occasionally such outlets simply proceed to publish political disinformation and undemocratic ideas on their own terms. Even state media like RT or Sputnik that routinely and more blatantly act as Moscow’s mouthpiece do not necessarily do so after having received detailed instructions from the Kremlin – as the Russian government’s general interests are rather obvious, in many cases this might simply be unnecessary. But perfidious motives on the part of those journalists cannot by itself imply that they do no longer have the right to freedom of the press.

More to the point, the more prevalent – and arguably more successful – variant of contemporary state-led information operations does not utilise the state’s “own” journalists or media outlets at all but exploits existing rifts and dissonances within the media and political landscape of the target state itself. Take for example the way the recent story about Hunter Biden’s “secret emails” implicating his father in questionable business dealings in Ukraine unfolded. The purported revelations were first published by the right-wing New York Post after having been handed a copy of the hard drive allegedly belonging to Biden by President Trump’s personal lawyer Rudolph Giuliani, who claimed to have received the object from a computer store owner in Delaware. Doubting the information’s provenance, a number of former U.S. intelligence officials publicly stated that the reporting “has all the classic earmarks of a Russian information operation”. Yet, crucially, no foreign journalist was involved at any point, nor did the operation require any coordination between the media organisation and Russian state actors. The New York Post, obviously with its own motivation to harm the electoral prospects of the Democratic presidential candidate, was itself all too eager to exploit the information for its own ends.

For an information operation to have an impact, the involved domestic news outlets do not even need to have an agenda or blatantly abandon professional journalistic standards. Consider the hack-and-leak operations against the Democratic Party ahead of the 2016 presidential election. The pressures of a highly competitive, shrinking media market just about ensure that even respectable media organisations will have an overwhelming incentive to report on the contentious information. Both these scenarios show that adversarial interference in the target state’s information ecosystem will likely benefit from exploiting domestic actors, whose contribution to the operation’s objectives might be unwitting or intentional, more so than from “ordering” domestic journalists to directly spread disinformation to foreign audiences.

If the draft bill of the revised Foreign Intelligence Service Law aims at making sure that the BND retains the ability to uncover and monitor adversarial information operations by foreign powers, therefore, the provision concerning the new procedural protections for journalists and their sources – at least in its official interpretation – most likely misses the mark. At the same time, it will not be without negative ramifications for the freedom of the press. In its General Comment No. 34 from 2011, the UN Human Rights Committee held that it is incompatible with the guarantees of Article 19 ICCPR to have state authorities deciding on who qualifies as a “proper” journalist, for example by maintaining systems of registration or licensing. In this light, it seems even more questionable that the BND is handed the authority to make a determination as to who is to be considered a “legitimate journalist” for the purpose of engaging in potentially highly intrusive surveillance activities without any external oversight.

It is certainly part of the core functions of a foreign intelligence service to monitor adversarial information operations that threaten to further undermine trust in democratic processes. And of course, for the time being, this is just a draft. But considering how rushed the legislative process is bound to become given the tight timeframe imposed by the Court – and an upcoming federal election – there is not too much reason for optimism that the final outcome will be much more refined. If enacted into law in its current version, the imprecise and overly broad authority to determine a journalist’s professional credibilities that seems mostly based on a poor understanding of the mechanics of contemporary foreign information operations opens the door to further human rights infringements and potentially takes back much of what was gained by the Constitutional Court’s landmark ruling in May. After all, by default, even sloppy, careless, or even heavily biased reporters with nefarious motives are nonetheless still journalists who are entitled to internationally guaranteed press freedoms against intrusive surveillance activities.