Term and definition of the intelligence service
Ein Intelligence service is a state organization tasked with the collection, evaluation, and use of information to counter dangers to national security and to prepare political as well as military decisions. In a legal context, the term intelligence service refers to those institutions that operate on the basis of specific statutory regulations and whose activities are subject to special powers of intervention and control mechanisms.
Distinction from police authorities and private services
In contrast to police authorities, intelligence services do not have original executive powers for hazard prevention or law enforcement. Private security and information services do not fall under the legal definition of an intelligence service, as they have not been assigned tasks and powers under intelligence service laws.
Legal bases for intelligence services in Germany
Constitutional foundations
The Basic Law of the Federal Republic of Germany contains no explicit regulations on intelligence services. Jurisdiction is derived from Art. 73 para. 1 no. 10 GG (exclusive federal legislation for defense including the protection of the civilian population) and other provisions. Restrictions on fundamental rights, especially in the context of surveillance activities, are subject to the principle of proportionality.
Statutory principles at federal level
The activities of the intelligence services at the federal level are primarily governed by the following laws:
Act on the Federal Intelligence Service (BND Act, BNDG)
The BNDG regulates the structure, tasks and powers of the Federal Intelligence Service. This agency is responsible for foreign intelligence gathering and obtaining information about foreign countries in order to gain insights into foreign and security policy matters.
Act on the Cooperation of the Federation and the Länder in Matters of the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Federal Protection of the Constitution Act, BVerfSchG)
The BVerfSchG regulates the tasks and competencies of the Federal Office for the Protection of the Constitution as well as cooperation with the state offices for the protection of the constitution. Tasks include, in particular, the collection and evaluation of information on activities hostile to the constitution.
Act on the Military Counter-Intelligence Service (MADG)
The MADG regulates the tasks of the Military Counter-Intelligence Service, which is responsible for counter-espionage and combating extremism within the Bundeswehr.
State law provisions
The state offices for the protection of the constitution are subject to the respective state protection of the constitution laws, which are similar in structure, tasks, and control mechanisms to the BVerfSchG, but may contain independent regulations.
Tasks and powers of intelligence services
Collection and evaluation of information
The core task is the collection, evaluation, and analysis of intelligence-relevant information. This includes both open sources (Open Source Intelligence, OSINT) and covert measures.
Intelligence resources
The means of intelligence include, among others:
- Surveillance and monitoring,
- Use of informants and undercover investigators,
- Technical telecommunications surveillance,
- Intercepting measures (under specific conditions),
- Use of information and communication technology.
The application of these means is subject to statutory restrictions and regulations regarding proportionality.
Disclosure and use of information
The information obtained may be passed on to authorized authorities within the executive branch (in particular law enforcement agencies) provided there is a legal basis. Automated transfer without individual case assessment is excluded.
Rights of intervention, limitations, and control
Interventions in fundamental rights and parliamentary oversight
Through their operations, intelligence services often interfere with fundamental rights such as the privacy of correspondence (Art. 10 GG), the right to informational self-determination, and the right to the inviolability of the home. Such interventions are only permissible on a legal basis and are subject to strict proportionality requirements.
Oversight is carried out by special parliamentary committees such as the Parliamentary Control Panel (PKGr) at the federal level, as well as by data protection officers and independent control bodies.
Legal protection and complaint mechanisms
Affected persons may submit complaints to data protection officers or directly to the respective control body. Depending on the circumstances, judicial review is possible, especially before administrative courts.
Criminal relevance of ‘intelligence activities’
The Criminal Code stipulates in sections 94 et seq. of the StGB (German Criminal Code) criminal offenses such as treason and intelligence agent activity. This includes, among other things, the (unauthorized) collection and transmission of information to foreign states or organizations.
Intelligence services in international (public) law
There are also regulations at the level of international law affecting intelligence services, particularly in connection with human rights and the protection of privacy. International agreements, such as the European Convention on Human Rights (ECHR), set minimum standards for surveillance and guarantee effective legal protection against unlawful interventions.
Summary
The intelligence service is a state institution whose legal framework consists of complex national and international regulations. Its specific position between administration, politics, and the judiciary, the particular requirements for control and transparency, as well as the statutory limits on powers of intervention, shape the special legal role of intelligence services in the Federal Republic of Germany. The interplay of statutory bases, constitutional oversight, and judicial protection ensures a balance between state security and the protection of individual fundamental rights.
Frequently Asked Questions
Which statutory regulations govern the work of intelligence services in Germany?
The legal foundations for the work of intelligence services in Germany are essentially set out in the Act on the Cooperation of the Federation and the Länder in Matters of the Protection of the Constitution (Federal Protection of the Constitution Act, BVerfSchG), in the Act on the Federal Intelligence Service (BND Act, BNDG), as well as in the Act on the Military Counter-Intelligence Service (MAD Act, MADG). In addition, the Basic Law (particularly Articles 10, 19, and 20), the Code of Criminal Procedure (StPO), the Federal Data Protection Act (BDSG), and state-specific protection of the constitution laws apply. Other important rules arise from the Act to Restrict the Secrecy of Letters, the Post, and Telecommunications (Article 10 Act, G10). Essential principles include the protection of fundamental rights, the prohibition of excess, the principle of proportionality, and a strict separation requirement between police and intelligence services. The legal provisions regulate both the collection, processing, and transmission of information as well as the control mechanisms, are subject to regular parliamentary and judicial review, and are supplemented by special legal intervention provisions.
What control mechanisms exist for German intelligence services?
In Germany, multi-layered control mechanisms exist for oversight of intelligence services, including parliamentary, judicial, and executive supervision. Key bodies are the Parliamentary Control Panel (PKGr) of the Bundestag, which monitors the activities of federal intelligence services, and the Confidence Committee, which monitors budget management. Another level is the Independent Control Council, which must approve or review specific surveillance measures under the G10 Act. At the judicial level, the Federal Administrative Court, in particular, supervises measures in the area of surveillance under the G10 Act. Internally, the services are subject to oversight by data protection officers and the respective federal ministry responsible (e.g., the Federal Ministry of the Interior for the BfV). In addition, there are information rights for affected citizens as well as avenues for complaints and legal action, for example through the ‘subsequent individual notification’ procedure.
Under what conditions may intelligence services collect and process personal data?
The collection and processing of personal data by intelligence services in Germany is strictly regulated and subject to the principle of legality, the protection of fundamental rights, and the principle of proportionality. In principle, personal data may only be collected, processed, or used to the extent necessary to fulfill the statutory duties of the respective intelligence service. Specific conditions and limits arise from the Federal Protection of the Constitution Act (§§ 8 ff. BVerfSchG), the BND Act (§§ 11 ff. BNDG), and the MAD Act (§§ 6 ff. MADG). Special protective provisions exist for professional secrecy holders (e.g., lawyers, doctors, journalists) as well as minors. For special surveillance measures (e.g., communications surveillance, surveillance of private premises), prior judicial or parliamentary control is required, such as by the G10 Commission. In addition, the principle of purpose limitation applies, and data must be deleted as soon as they are no longer needed for task fulfillment.
What special considerations apply to cooperation between German and foreign intelligence services?
The cooperation of German intelligence services with foreign counterparts is based on international, European, and national legal provisions. Central legal frameworks stipulate that the exchange of personal data and intelligence findings must take place on a case-by-case basis, be necessary and proportionate, and comply with German legal requirements. The transfer of personal data abroad is generally only permitted if the recipient guarantees an adequate level of data protection, or if contractual, legal, or technical safeguards are in place. Furthermore, the Federal Chancellery and the respective responsible ministries are involved in the processes, and certain operational activities require approval by the Federal Government. At the European level, the requirements of the General Data Protection Regulation (GDPR) must also be observed, as far as applicable, supplemented by specific provisions in the BNDG (§§ 13 ff.) and the respective cooperation agreements.
What is the so-called ‘Trennungsgebot’ (separation principle) and how is it legally implemented?
The separation principle (‘Trennungsgebot’) is a central organizational and legal principle of German security law, mandating the strict institutional and functional separation between intelligence services and police authorities. It is primarily a consequence of historical experiences with repressive state security services in Germany and is intended to prevent the abuse of power by mixing intelligence and police functions. The principle is enshrined in law, especially in the Federal Protection of the Constitution Act (§ 2 para. 1 sentence 2 BVerfSchG), but also in other relevant laws. It prohibits intelligence services from taking executive (i.e., direct regulatory and police) measures—in particular, they may not carry out coercive actions such as arrests, searches, or seizures. Cooperation with the police is permitted only in clearly defined exceptions and requires strict legal bases and transmission rules.
How are affected persons informed about measures taken by intelligence services?
The information of affected individuals whose fundamental rights have been restricted by intelligence activities (e.g., by surveillance under the G10 Act) is legally required, but usually occurs with delay and is subject to the reservation that the purpose of the measure, public welfare, or the life and physical safety of third parties are not endangered. The so-called ‘subsequent individual notification’ is particularly regulated in § 12 G10 Act and stipulates that affected persons must as a rule be notified afterwards if measures such as communications surveillance or mail control have been taken against them. Advance or detailed notification obligations do not exist to safeguard the effectiveness of the measures. If the intelligence service fails to comply with its notification duty, recourse to the Federal Administrative Court or the data protection authorities is possible.
What legal remedies are available against measures taken by intelligence services?
Affected individuals who suspect or realize they have been the subject of intelligence measures have various legal remedies and avenues for complaint. These include, in particular, the possibility to lodge a data protection complaint with the Federal Commissioner for Data Protection and Freedom of Information, requests for access under § 15 BDSG, and legal recourse to the administrative court. For specific fundamental rights infringements, such as interference with the secrecy of correspondence under the G10 Act, affected persons can apply to the Federal Administrative Court for a declaration of illegality or for an injunction. The Federal Constitutional Court may also be seized through a constitutional complaint if a violation of fundamental rights by intelligence measures is alleged. However, the effectiveness of legal protection is regularly limited due to the requirement for confidentiality of such measures.
