Tag: Court Ruling

US court unsuccessfully demanded extensive information about user of the messenger app Signal

16. November 2021

On October 27th, 2021 Signal published a search warrant for user data issued by a court in Santa Clara, California. The court ordered Signal to provide a variety of information, including a user’s name, address, correspondence, contacts, groups, and call records from the years 2019 and 2020. Signal was only able to provide two sets of data: the timestamp of when the account was created and the date of the last connection to the Signal server, as Signal does not store any other information about its users.

The warrant also included a confidentiality order that was extended four times. Signal stated:

Though the judge approved four consecutive non-disclosure orders, the court never acknowledged receipt of our motion to partially unseal, nor scheduled a hearing, and would not return counsel’s phone calls seeking to schedule a hearing.

A similar case was made public by Signal in 2016, when a court in Virginia requested the release of user data and ordered that the request not be made public. Signal fought the non-publication order in court and eventually won.

Signal is a messenger app that is highly regarded among privacy experts like Edward Snowden. That’s because Signal has used end-to-end encryption by default from the start, doesn’t ask its users for personal information or store personal data on its servers and is open source. The messenger is therefore considered particularly secure and trustworthy. Moreover, no security vulnerabilities have become known so far, which is definitely the case with numerous competing products.

Since 2018, Signal is beeing operated by the non-profit organization Signal Technology Foundation and the Signal Messenger LLC. At that time, WhatsApp co-founder Brian Acton, among others, joined the company and invested $50 million. Signal founder Moxie Marlinspike is also still on board.

The EU commission is planning a legislative package to fight the spread of child abuse on the Internet. The law will also include automated searches of the content of private and encrypted communications, for example via messenger apps. This would undermine the core functions of Signal in Europe. Critics call this form of preventive mass surveillance a threat to privacy, IT security, freedom of expression and democracy.

Germany’s Constitutional Court curbs Federal Intelligence Service’s competence

16. June 2020

In a court ruling from May 19th 2020 with regards to the German Federal Intelligence Service (BND) and their manner of operation, the German Constitutional Court has proclaimed that the BND is bound by fundamental rights in cases of surveillance of foreigners, even outside of Germany’ federal territory.

 Background

The case, which was brought to the court in the manner of a constitutional complaint by a collective of foreign journalists, found its origin initially through the disclosures made by Edward Snowden back in 2013, where some of the BND’s practices in relation to strategic foreign surveillance came to light. In 2016, German legislators passed a new law with the purpose to regulate surveillance done by the BND. However, that new law mainly restricted surveillance of German citizens, as well as foreigner living in Germany. It has been criticized that the new law did nothing to restrict and regulate the BND’s actions abroad by not having to abide by any legal provisions. The constitutional complaint brought to the German Constitutional Court deals with strategic surveillance from foreign reporters and journalists with regards to their highly confidential data necessary to perform their work through the BND, which risks to be exchanged with their own country’s intelligence agencies and in the process put them at risk of federal measures taken against them.

The key points

Territorial Scope. One of the biggest points of the court ruling has been the definition of the territorial scope of the fundamental rights at risk in this case. Since the complainants are journalists from outside the German territory, the Constitutional Court had to specify if the constitutional rights that would shield them from surveillance by the BND would find application in the matter. In this instance, the court has ruled that the fundamental rights are not limited to the German territory, but rather apply wherever the German state authority is acting. This is derived from Art. 1 III of the German Constitution (GG), which binds the German state authority to conformity with the Constitution. In such, as the fundamental rights from Art. 10 I, Art. 5 I GG are not simply applicable to Germans, the Constitutional Court has extended the range of application to foreigners in foreign countries, and given them international importance.

Current legislation is unconstitutional. In effect, the Constitutional Court has further analysed the new intelligence law from 2016, and ruled it unconstitutional in the current state. The main reason is that, due to the fact that the legislators assumed that the fundamental rights did not apply, they did not conform with the requirements set out in the Constitution for such law. In such, the new law violates the privacy of telecommunications and its requirements from Art. 10 I GG, and in addition does not meet the key requirements deriving from other fundamental rights, such as Art. 19 I GG. However, the Constitutional Court has stated that the law can be amended to follow fundamental rights and comply with the constitution. The court declared several points which are necessary to implement in the amended law, some of which we will present further below.

Independent oversight. The Constitutional Court stated that in order to ensure conformity with the Constitution and regulate the BND in a way that would ensure the protection of fundamental rights of the people under surveillance, it would be necessary to establish a new, independent oversight regime that would act to judge and regulate strategic surveillance. Its main purposes would be the legal oversight of the BND and protection of the surveillance subjects, as well as the control of the surveillance process, from the analysing of data to the transfer of information between agencies, etc.

Legislative suggestions. In the ruling of the case, the Constitutional Court also made a few suggestions in regards to potential statutory regulation in order to regulate the BND and its area of action better than it was in the past. Part of those suggestions were the necessity of defining the purpose of surveillance measures with precision and clarity, in order to ensure transparency, as well as the necessity for the legislator to set out essential framework for the analysis of the collected data, like a cease in analysis as soon as it becomes clear that the surveillance has touched the core of private life. The court also suggested that special requirements have to apply to the protection of professional groups with communications of increased confidentiality, and that the surveillance in these cases must be tied to qualified thresholds. The court also mentioned the storage and deletion of surveillance data, stating that the traffic data obtained should not be stored for longer than six months, while a systematic deletion policy needs to be established. In the terms of the transfer of information to other (foreign) intelligence agencies, the Constitutional Court made it clear that such transfers will need an official statutory basis in order to be lawful.

The court has given the German government until the end of 2021 to amend the law and make statutory changes to comply with the ruling and the decision of the international scope of the fundamental rights. While this may seem like a big set back for the BND, it is a chance to show that intelligence agencies can work on a high constitutional standard while also being successful in their purpose.