10 years of Society for Civil Rights: Protection against surveillance and more

Contents

On the tenth anniversary of the Society for Civil Rights (GFF), lawyers in particular looked back on the successes of strategic lawsuits and discussed how digitalization, data protection, and fundamental rights can be defended in the future. At the tenth anniversary celebration, human rights expert Maria Scharlau took stock of the Gesellschaft für Freiheitsrechte (GFF): “We have conducted 104 cases in the last ten years, 45 of which were constitutional complaints. We have won three out of four cases.” A remarkable rate, says Scharlau, as it always involves fundamental issues and often the unconstitutionality of entire laws.

The GFF's work was triggered by Edward Snowden's revelations in 2013, which showed for the first time the full extent of how American and British intelligence agencies were collecting digital communications on a massive scale—often with the involvement of the Federal Intelligence Service. However, there were no concrete consequences at first. The Snowden affair ultimately led the GFF to initiate one of its most important strategic lawsuits shortly thereafter: the constitutional complaint against the BND Act.

Founded by a small volunteer group led by Ulf Buermeyer, the GFF has since grown into an organization with over 30 full-time employees. Initially, the focus was strongly on lawsuits against surveillance laws, but today the organization campaigns for the rights of refugees, freedom of demonstration, and protection against discrimination in the workplace. – and also conflicts with large digital corporations. According to Scharlau, the challenges have not become smaller but bigger. Democracy and fundamental rights are increasingly being called into question. She described it as more important than ever to consistently defend the constitution and human rights. At the anniversary celebration, heise online spoke to Malte Spitz, among others – is co-founder and secretary general of the GFF.

Mr. Spitz, the GFF has now been in existence for ten years. How has your work developed during this time?

From the outset, we had a strong digital focus, for example on the BND's foreign surveillance. In the early years, other topics were added. Today, we concentrate on three main areas: first, classic fundamental rights such as freedom of the press and freedom of assembly; second, digital issues such as government surveillance or the influence of large digital platforms; and third, social participation and equal rights. The interfaces are particularly exciting, for example in the case of the Central Register of Foreigners: it affects refugees, for example, but at the same time it is a huge database with many data protection problems.

You just mentioned freedom of the press and information rights. At the beginning of the year, the CDU called for the abolition of the Freedom of Information Act (IFG). What role does this issue play for you?

We have numerous ongoing cases relating to freedom of the press. We are noticing how this is coming under pressure, and developments in the US are impressive proof of how quickly things can change. A free press is essential for a functioning democracy. Rights to information and access to information are a regular feature of our cases. In “FragDenStaat,” we have a long-standing partner that focuses on this area and has a strong technical expertise. Our aim is not to duplicate the good work of others but rather to fill gaps or strategically complement their work.

Another example of cooperation is your collaboration with the CCC. How does something like that work?

Cooperation is at the core of our work. We contribute our legal expertise for strategic lawsuits. Other organizations, on the other hand, have deeper expertise in specific areas, such as, in the case of the CCC, for example, the technical dimension or, in the case of NGOs in the area of migration, the everyday proximity to the people. We then talk about plaintiffs, communication, and strategy. In the F5 alliance, which we set up with four partner organizations such as AlgorithmWatch, the Open Knowledge Foundation, Reporters Without Borders, and Wikimedia Deutschland as GFF, we coordinate intensively on digital policy issues to work on them together.

Do you sometimes get the impression that other stakeholders remain passive because they think: “The GFF is already doing it”?

I wouldn't call it inactivity. But it is true that many ideas are brought to us—according to the motto, “This should be challenged; have you seen this too?” This gives us many exciting ideas. Our aim is to be a kind of “legal protection insurance for the Basic Law”: to be there when there are comprehensive infringements of fundamental rights.

A current example is the debate about the use of Palantir software for police data analysis.

We are conducting several proceedings on this issue—the first ones have already been successful—and are critically monitoring developments at the federal level. It is important to note that we cannot file abstract lawsuits in advance, but only when an infringement is foreseeable or has already occurred.

Are you also in contact with data protection authorities?

Yes, of course. We are in regular contact with the supervisory authorities, not least because we ourselves also file complaints. Strategic lawsuits are one tool in our toolbox, but we have various legal instruments at our disposal, and sometimes the process begins with a complaint to a supervisory authority. Communication is therefore very important to us, also to receive feedback on our work or to see where things are heading.

Are you already looking at future issues, for example, in healthcare?

Absolutely. We have had a case running for years that will hopefully lead to a landmark decision. The sensitivity of health data and the broad impact of this issue make it particularly important.

The GFF is financed by donations. Are there typical occasions when support is particularly strong?

We notice an increase after media attention for proceedings or successes. Overall, however, we are still heavily dependent on funding from foundations; we do not accept government funding. To really secure our work, we need significantly more supporting members who will support us in the long term and enable us to plan more independently. We are talking about complex legal proceedings that drag on for years and require a high level of legal expertise. Without the financial support of many people, we cannot do our work.

Do you also encounter hostility?

Yes, that happens. Most recently, for example, in connection with our report on the AfD or in proceedings on migration or equality issues. There are emails or attacks on social media, albeit nowhere near to the extent of some other organizations or individuals. Fortunately, we are in a good legal position to deal with this. Unfortunately, we are seeing that such attacks are generally on the rise and are creating uncertainty in civil society.

A look at the USA

Commenting on current developments in the USA, US civil rights activist Ben Wizner from the American Civil Liberties Union (ACLU) explained that his organization has already filed over 80 lawsuits against Donald Trump's policies since 2017. Successful in around three-quarters of cases. Although many political measures have been blocked, Wizner urged sobriety: according to Wizner, the law is not and cannot be a substitute for politics. Legal proceedings could slow down authoritarian action but not prevent it completely. They are instruments for slowing down and correcting, as Gabriele Britz, who was a judge at the Federal Constitutional Court from 2011 to 2023, also emphasized. Authoritarian abuse of power must be addressed at an early stage by the legal system and civil society.

Informational self-determination

Britz made it clear that fundamental rights are constantly evolving: “With every Senate decision, fundamental rights change a little further.” Data protection and informational self-determination in particular have been massively strengthened. Britz referred to further rulings on security-related laws such as the Federal Criminal Police Office Act (BKA Act), the Bavarian Constitution Protection Act, and regulations on online searches. In these decisions, the court examined in particular whether the respective state measures were compatible with the protection of telecommunications secrecy under Article 10 of the Basic Law and the inviolability of the home under Article 13 of the Basic Law.

The Federal Constitutional Court declared key sections of the BKA Act and various surveillance measures by the Bavarian Office for the Protection of the Constitution to be unconstitutional insofar as they did not sufficiently consider and protect the fundamental rights of those affected to data protection and informational self-determination, to the secrecy of telecommunications, and to the inviolability of the home. At the same time, she emphasized the limits: law and court proceedings could “at best slow down certain developments and create hurdles, but […] not stop them.” Many small interventions that appear harmless in themselves could, when taken together, constitute a violation of fundamental rights.

According to Saskia Esken, who also took part in the discussion, the Constitutional Court had introduced concepts such as the overall surveillance balance. These were not initially included in the constitution but were a success for the Constitutional Court. She described Karlsruhe as a necessary corrective. According to Esken, the debates have been the same for years, namely the balance between freedom and security.

From “niche issues” to fundamental questions

GFF lawyer Bijan Moin explained how proceedings work. “We don't decide anything ourselves, nor can we change the framework. We prepare proceedings in such a way that a court may reach a verdict that strengthens fundamental rights and, of course, shapes this framework and remains informed.” The GFF actually only enables the provisions of the Basic Law to be enforced and conducts proceedings on behalf of people who do not have the means or even the knowledge to sue themselves. He also recalled how the work has changed: “In the past, we dealt with niche issues such as electronic lawyer mailboxes—almost a luxury in hindsight.” Today, fundamental issues such as human dignity, the rights of refugees, and mass surveillance are at stake. One of Moini's concerns, for example, is that politicians are accepting breaches of the law or violations of fundamental rights.

“My concern is not so much that politics is encroaching on the law, but my concern is that politics […] is jumping on the populist bandwagon too quickly. I find that intolerable […] that politics doesn't really get down to business,” criticized Britz. She wanted to see people in politics “who stand up for a cause and fight for a cause and don't get lost in strategic squabbles.” She would like to see more seriousness and trust in factual arguments—and less populism.

(mack)