DE-CIX files lawsuit against German spy agency

11 October 2018 | James Pearce

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DE-CIX has filed a constitutional complaint against Germany’s main spy agency after a federal court threw out a previous case.

The German internet exchange saw its lawsuit before the German Federal Administrative Court dismissed earlier this year, but is now seeking a clarification of fundamental legal questions through the Constitutional Court.

The dispute stems from concerns raised as early as 2008, when DE-CIX received a request from the German secret service (the Bundesnachrichtendienst, or BND)  to wire-tap its Frankfurt exchange. The move was supported by government figure, DE-CIX supervisory board member Klaus Landefeld told Capacity two years ago.

This practice was  not examined by the Federal Administrative Court in the course of the proceedings. After the  presentation of the justification for the verdict and a thorough examination thereof, DE-CIX has now also filed a post-judgement objection against the decision of the Federal Administrative Court in Leipzig.

“For us, the decision by the Federal Administrative Court to dismiss the case without consideration of the objections raised is legally not acceptable. For this reason, we have filed an appeal and a constitutional complaint in Karlsruhe,” says Landefeld of this latest development.

“The violations of the principle of the secrecy of correspondence and telecommunications which were comprehensively demonstrated and argued in our lawsuit were not even dealt with by the Federal Administrative Court in the process. This is, for us, inexplicable. We therefore, after this verdict, see ourselves as remaining obligated to our customers to take action to ensure that any strategic signals intelligence relating to their telecommunications occurs exclusively on a legal basis, as intended by the lawmakers.

“Currently, we do not see this as guaranteed. The form and extent of the (non-)handling of the fundamental legal questions at the heart of our lawsuit by the Federal Constitutional Court unfortunately has not contributed to a clarification of these questions at all.”

The case raises questions over the extent to which state surveillance is acceptable in an open, democratic society, similar to those asked in the United States after whistleblower Edward Snowden revealed the extent of snooping by the National Security Agency, or in the UK following the passing of a so-called Snooper’s charter.

DE-CIX, which runs 14 internet exchanges worldwide, will only have the option of taking the case up with the Constitutional Court should the FCA once again reject its case. The BND had not responded to Capacity at the time of publication.