Die Rechtsbindung des Bundesnachrichtendienstes bei Auslandstätigkeiten

Abstract

Legal Restraints on the Extraterritorial Activities of the German Federal Intelligence Service

The essay analyses the authorization and the legal restraints on the extraterritorial activities of Germany’s foreign intelligence service (Bundesnachrichtendienst – BND). There has always been a discussion about whether intelligence operations abroad are suitable for statutory regulation at all. The current BND Act regulates the assignment of the BND and authorizes it to gather information by investigative measures on German soil, which may include interventions into basic rights. Nonetheless, the BND Act does not provide precise authorizations for extraterritorial activities. This essay discusses the requirement of a statutory authorization of intelligence collection abroad, which particularly depends on the extraterritorial applicability of basic rights. According to rather incoherent jurisprudence it remains an unsettled question whether–and if to what extent–German officials acting under cover on foreign soil are bound by basic rights without effective control over the relevant territory. To complete the picture, the article reviews the criminal liability of administrative officials collecting intelligence illegally under foreign law, and outlines under which circumstances data obtained extraterritorially can be introduced as evidence into administrative or judicial proceedings.