BfDI files lawsuit against the Federal Intelligence Service

Commenting on this, the BfDI, Prof. Ulrich Kelber, said: We often work well together with the federal intelligence services and our suggestions are used as an opportunity for changes. Unfortunately, however, we also note that in the event of disagreements, our legally provided complaints are not taken into account. It is often not understandable why the complaint did not give rise to remedial actionn. It is unacceptable that the so-called compensation function granted to the BfDI by the Constitutional Court for those unknowingly affected by actions of the BND is blatantly ineffective. In addition: The final decision as to whether data processing is lawfully carried out by a federal intelligence service should not be left to the final assessment of the federal government, but of a court.

 The BfDI currently only has the possibility to issue unenforceable complaints to the Federal Chancellery as the ministry that is responsible for the BND. The same applies to the Federal Office for the Protection of the Constitution and the functionally responsible Federal Ministry of the Interior. This happens when the BfDI detects violations of data protection law, such as against the Federal Intelligence Service Act.

 By refusing access, the BND interferes with the independence of the BfDI by claiming that it wishes to decide on the necessary basis, scope and content of the control carried out by the BfDI. The complaint subsequently made by the BfDI was not taken into account by the Federal Chancellery - as in other cases before.

 In the present case, which is the basis of the legal dispute, the BfDI can bring sue for the right of access to which it is entitled. In cases where it filed a complaint due to unlawful data processing, this is not possible. The BfDI has long criticized the fact that it does not have an enforceable right to issue orders that would enable a more effective control of the intelligence services. Only through the right to issue orders, maladministration could be remedied or brought to justice in a timely manner. For the BfDI, as the supervisory body with the objectively legally most comprehensive control responsibility over the BND, the right to issue orders is therefore of central importance. From the BfDI's point of view, more effective control over the intelligence services would also additionally legitimize their important work. The orders of the BfDI could of course be challenged in court by the intelligence services concerned.