How to defend civil liberties with lawsuits

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Government oversight over intelligence agencies is often toothless. Therefore, courts are the last resort to turn to, and in many cases they have been much more aggressive than politicians in curtailing surveillance agencies’ powers. We will present the latest developments in cases like Reporters without Borders vs. BND and UK groups vs. GCHQ. We will also discuss and develop new ideas for strategic litigation in order to defend civil liberties on as many fronts as possible.
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thank you very much and what you can all hear me yes now I can hear myself at at also over the loudspeakers good morning everyone 2 German standing on the stage speaking English but we announced this talk in English because
we had wanted to have some guests from Britain who unfortunately um then could make it but since it was announced in english we'll do it in english uh because I guess we have some initial guess here as well and so the way we do it is I'll tell you a bit about the case of Reporters Without Borders versus the German intelligence agency the then that would where I chime in with some information about a strategic litigation and the strategic aspect behind that and then now we talk a little more about the specific case of Reporters Without Borders and then we'll have a open Q and a and we won't be talking long solar bear with us to them would why we're setting the stage and then I hope we can have a discussion about the strategic nests of litigation and how we can also make it work in Germany exactly OK so some Reporters Without Borders so would the German intelligence agency B in the last year in
july them and the reason we did that was because we're saying that the surveillance that they're doing is 1st of all over broad and secondly indiscriminate and on a different count that they're running a database that has no legal grounds in Germany 1st part is an from what the media reported and found out in Germany and also what the parliamentary
them and this also shows inquiry committee the embodiment inquiry committee also found out is that in in germany there and the BND collects millions and millions of
e-mails every year to search them now the way they search them is unclear but this is also part of what we'd like to find out by some suing them and because we hope that we get some more information about that know what we assuming goal is if some millions and millions of e-mails especially the ones that i exchange with foreigners are so varied in Germany or 1st of all collected now we can talk a lot about what surveillance actually
is but there are are collected and partly analyze nite that is the case then we claim that there is basically no way that e-mail from Reporters Without Borders were sent to Reporters Without Borders from journalists in foreign countries will not end up in the dragnet
some because there is a some specific situation for journalists in Germany we have a very good shield law here and we claim that this is against the law and if it were decided by the federal um Administrative Court in Leipzig this is where we um and where we had to file the suit against a B and D and that this is unlawful this would also have an impact on the practices that the BND is doing in general and so this is the 1st part of the 2nd part is that they they're running this database that is called
via fast fat cats and loses esteem in Germany and all traffic analysis system traffic and of course in the sense of electronic communications traffic now in the fact that they're running it and it's pretty clear that they're running it and collecting about 500 million sets of metadata each month's means that this is data retention now there was no legal ground for data retention at the time that we find that the loss would end there could be a good discussion about the question of whether now that we have a data retention log and this would make this practice legal them at the time that we fight the so it on in our opinion it was clearly illegal that they were doing this because data retention was did not have the legal ground in Germany now that's the substance of the
case and now I hand over to worth and use a little bit about the strategic litigation yes thanks years for you're an overview about over the case that you just brought last year and they like to invite you to think with me about them the role that education can
play in in hell landscape of democracy to encourage civil rights from let's let's and stay with the example that matches just brought about that in the example of civilians off the end of Internet traffic for example
e-mail and the NSA inquiry committee of the German parliament found out that a lot of this in surveillance is currently not um on any legal basis so there is no statutory authorization forward many German agencies do at this point am which is really interesting and concerning but what is the reaction in the political sphere in Germany well most politicians think that it's not that bad actually we just have to change the law in a way so that it covers whatever the agency's do so basically you take the example of lawbreakers and then you twist the law to cover what they have been doing and promise a rights perspective this of course means that arise can be diminished by breaking them and but he an I and many others in this country and I think that this is not the way and that government agencies should act but the question is how can you actually change their behavior and how can you change politics if there is no 6 and
no sufficient political will to actually brain and what these agencies do well then maybe you have to twist the political landscape in order to encourage you
Goals and this is basically where litigation comes into play and you have to think about and what success means in the field of education well of course if you bring a case to certain court then you once this case had to be 1 of course you want the courts to agree with work that with what you're writing a new compact that would be the ideal outcome but let's be realistic this might not even be the outcome that you can achieve in just a single losses so you have to be a little bit more modest when it comes to success and for example the lawsuit might get lost in the 1st the 1st time you bring it this was the case for the 1st lawsuit that um that the law you brought that uh Reporters Without Borders now hired you lost practically the same case with a very well fish EU reasoning from the lexical let's let's put it that way many many only go and experts agree that this reasoning is flawed and so what do they do they don't just give up they bring the case the 2nd time this time with the assistance of Reporters Without Borders so success doesn't necessarily mean you're always win your case but you can already get some kind of legal reasoning in place and then you have you have at least some kind of legal debate legal scholars might try to address issues might then tried to convince cost to decide in a different way in the 2nd instance or you can encourage the public debate so basically the success that you might
have with the case is much broader than just the holding that the court might come to the 1st so you have to see
lawsuits in a much broader sense than just in the sense of winning a case out right in the 1st instance it's basically and something that you have to and bad and hold strategy in order to encourage civil rights and that now it's and talk a bit much years about the strategy
that the part of the border had to bring this particular case yeah and the what was already mentioned is that as an organization you need to think about a
couple of things bringing such an awful lot so 1st of all and many of you might not know what Reporters Without Borders actually is or does you know many people because of the name it's it's pretty obvious associate them or compare that to were um um doctors without borders but actually I'm Reporters Without Borders is is an advocacy organization only we do will have emergency help capacities but this does not mean that we send journalists into crises areas but we had a journalist from crises areas for example if they need legal help if they need medical help and things like that so it's
not that we deploy journalists so crises areas because that is what the media do we usually and we try to support that so the mandate of Reporters Without Borders is some freedom of information now how do we protect freedom of information as an advocacy organization we try to raise issues we try to bring issues into the them into the public debate and most of the time and these issues are from countries unlike Germany where freedom of information freedom of expression is under much bigger pressure than it is here right so 1st what we discussed in Organization was would we want to
bring a case in germany at all because we have to think about whether this is in line with our mandate you know when we're talking about countries like Syria Iraq and Vietnam Saudi Arabia can we as an organization really afford a or is it there is that the will of all constituency that we bring a case like this now we
discuss about this for quite some time and then we decide in the end yes that 1st of all it
is because we also have to God press and information freedom in Germany as well secondly you know our constituency is here the people who are members of Reporters Without Borders the people to dawnlight to Reporters Without Borders i in Germany so and this is also and the reason for an organization like ours to bring a case like this in Germany right and the 2nd aspect is as
was just said winning the k is is probably not the
only goal it's not it's not probably it is certainly not the only goal of a strategic loss would like the 1 we fired because and we expect at least on the 1 call that was already dealt with by the light in the past we will probably lose again you now as was said it was a very strange reasoning that the court gave but there's not really a reason to
expect the courts to give a better reasoning the next time you know we probably lose
on that can't be a little more optimistic on the count of the and the legal basis that is not there for the data retention but you know let's let's see what happens from the has the has been a little legal
debate in them in the 1st decision from the latter what was so bad that many legal scholars publish articles about it and journal articles and so there has been criticism and maybe the judges might revisit the quest but you're right you never know right but that wouldn't be and they wouldn't be the end of the story writing if you even if you lost again on that count elected they wouldn't be the end of your loss of what exactly and that's the that's the point
where we have to think about what do we do if we lose in case we was because it's not so
unlikely that we use in that in that instance and some uh in in that case we will go to the constitutional court in Germany which is um well let's let's put it that way in an optimistic framing from that is good for tool more reasons 1st of all we might then win in the end after all right he because they might overturn uh and the the ruling of the um Administrative Court secondly you had to have and also to bring a lawsuit to the Constitutional Court gives us another opportunity to work and raise awareness for the issue in the media and among advocates in x activists and so on and so forth so this is of course a very
important aspect of them some of filing that's so would in the 1st place but at the same time as an organization and
we have to make sure that for example if you really want to work and dedicate our resources to that because it wouldn't make much sense to go to the court of the I mean it's not the 1st instance it's already the federal court in there but it's the administrative Court to go there who was in and say OK that's the end of it we tried uh thanks a lot for but all bearing with us but this is it not of course we have to be prepared to do a step after that and we are prepared to do that the yeah I think this is a this is a interesting aspect of of equipment has just said you have to and you have to embed your case in a whole communication strategy because of course courts will hand out press releases and even some other pressure groups
groups might hand out press releases but you don't want this to be the end of the story as well you want you want your own viewpoints to be communicated and at least in the German media sphere lawsuits are news so as soon as you bring a case in this case does just concerned like neighbors dispute than this case will usually be reported on by the media so you can raise awareness for rights useful legal issues for political issues by bringing a lawsuit but if you do it do it for good in a proper way and so then define a media strategy beforehand that have a realistic idea of what success will might mean in this particular case is here said the realistic expectation this cases they might lose on them in Leipzig but they then go to the constitutional court and then they might change the law for the better and I think this is really important have a whole a holistic view of that case which is not only a legal case but it's also a communications case in a political sense and I'd I'd like to talk about 1 last
issue before we open for for questions and discussion and that is the question of standing in Germany because that isn't very I think a very important aspect of this entire
strategic mitigating the idea and unlike the United States um in unlike Britain as far as I know we have a much harder case here in Germany in many some of the uh some problems that we're facing that we need to establish standing with the court that means we have to sure that we are really affected by the law that we are trying to overturn or
by the decision that we're trying to overturn and and this is specifically problematic in our case because uh it was basically a catch 22 argument that the court made in the 1st in the 1st round it's called the 1st round and all the similar laws so that the layout of fired them 2 week 2 years ago or 3 years ago and and the court basically said that he was not on at least on in 1 argument that he was not successful in establishing that he was really affected by the law of them by the by the surveillance of the German intelligence agency but at the same time of course a German intelligence agency would never tell you whether they surveyed you or not right so what
that meant is that basically you have no protection by the law if the quot argues like that you know
and it also shows some way shed some light on 1 of the most important problems that we have in Germany that there are very few some legal areas where we can for example fire them so what's that are similar to or a class action lawsuit would not that's basically in most cases impossible in Germany you always have to establish this spending meaning that you were really affected by the law and that is not easy and that means that institutions negation you also have to think hard about them was going to fire them the suit itself yeah that that's an interesting aspect because you basically have
to build your case you can just like open your eyes and look where there is a great case but you have to have an idea of the legal issues that you wanna bring and then you have to hand pick the best plaintive the best complainant in order to bring a compelling case them however the standing requirement that is just mentioned isn't like specific to German law and use coarser thrown out observations cases as well I have ever seen thrown out drone strike cases on basis of made on the basis of missing standing around so this is not specific to German law that to the contrary the German Constitutional Court is relatively more lenient when it comes to the standing requirement for example you do have to prove at least according to the 1st laptop decision you do have to approve standing if you wanna claim that you have been targeted by civilians but if
you go to the Constitutional Court then them it's sufficient to to bring a compelling argument that you might be concerned by a surveillance law at these
if you chose the law directly during the so called facial challenge to the wall and this is why and it is probably so much more promising to end up at the castle level because they have a different standard 1 OK so much from us I think we
talked long enough them is there anyone
who has any questions regarding that would like to start a discussion OK for it but we have moderated to in intensive session but that's I could stand on I wonder if and this could be a role model for fighting muscle hands there at all in general so what you do is if I understood right and looking at the special rights of journalists and there are special rights about awareness of journalists in Germany um
but if they could not guarantee to find keep that long they should have the way in they had had to take the whole thing and and as there are some other groups in Germany like lawyers or doctors who have the same special laws about surveillance at the gym think about and working together with some lobbies of those groups you know what I mean this is just what I do well from a from a lifesaver
let's call it a public relations point of view we have and we've been doing that a lot we we have a lot of press releases that we issued where we can combine our and case for our argument with the argument of for example of lawyers and other people who also have these she lost yes we've we've been doing that in the end as I said um always were already said and they're basically parallel cases that we have in like the 1 is fired by a lawyer 9 1 is fired by journalists organization um in the and also important and interesting question that you asked is uh what about the general outcome of this case and especially on the 2nd part of it the 1 with the metadata collection there it doesn't really mean our argument and does not have anything really to do with the journalists on lawyers in that case what we're saying that there are no legal grounds so if this would be accepted by the court unlikely as it is but if this were accepted by the court this would mean that this practice would have to end in general not just for lawyers not just for journalists but in general so yes in many cases in these kinds of um we also want the people would benefit from the from the positive resided from a positive outcome seen from our perspective of course not from the B and these would not be the people were suing uh but basically the the general public that
what the question it how it's it's so unlikely that you could and when the case can I for political reasons i'd call that you not that that no
axioms the the the reason is that the various a mock case was already brought by the
same lawyer but in his own name like 2 or 3 years ago and that was lost on that standing around that's much just lined up and so the court would have to revisit this question in order to come to different outcome this is possible as I said because there has been so much criticism in the legal and in the league around about the 1st
decision that you know it's there has been so long so it might say the court might just find the same reasoning that found follow that last time but then again part of the borders would go to the Constitutional Court and as there is a constitutional guarantee full legal review of administrative action in Germany and the latter scored significantly diminishes this opportunity to seek legal review a court review them I think because his report would probably not agree with what the latter what help but you never know right and what I meant with that statement you know for
political reasons and of course the judges um have a
certain idea of how the word is supposed to work and the judges at the Federal Administrative Court in Leipzig in Germany they are not very likely to think that some from the powers of the B and you should be curtailed uh that's that's what I'm saying you know it they are interpreting the law and they
can be interpreted this way or that way and then even if some experts afterward say well that was a bad reasoning in
all we used to have a probably a negative outcome of the core of the case it's but that may be to add a positive
line to to that and the fact that they were so stupid strict on standing is probably
because they know if the case was admissible right if standing was so there was was agreed on agreed with them now factually the case for probably be lost for the B the because there is just no legal basis for the surveillance which in itself is kind of firm of an indicator that the case isn't that bad them as you might think and
1 on the question test time for 1 and question and answer these colonies would we were told that we we get the 5 minutes that we started later to thank you very much meanings diarrhea and I have a question regarding and the also that have been filed regarding data retention I think it's 4 different lawsuits already
that have gone in an and I think there's some more to come and people have announced somewhat I was wondering with your legal expertise could you maybe tells a little bit Howell they differ from each otherwise it for different ones is it good that there's many lawsuits is it maybe not so good and just your general on view on this no well that's a pretty
complex question because am the I know 1 also pretty well um I don't and only know like the outlines of the others so I can't really compare the reasoning in detail and generally I think it's a good idea if the
same legal questions are addressed from different viewpoints so different viewpoints in terms of and professional background societal background and because that basically enables a cost were Constitutional Court to to really see a holistic picture of the issues at stake in this case and but on the other hand you want to coordinate 2 cases and this is why I'm a little skeptical for example by the case that is still about to be brought by D type lot for them because they did not really coordinate with the others and and they there is a lot of money where nobody really knows what's going on and this lawsuit is still in the making and there can letter like desperately looking for inputs on the internet and this looks a little bit scary to me to be quite honest you should if you bring such a case and especially if you if you launch a PR campaign about such a case and you want to be sure that you're gonna have the means to follow up on your promise right the 1st 4 cases focuses nothing demonstrate that it's possibly a possible to bring a very good constitutional decays even without an enormous funding because the the others did not really even start a large crowd funding continued you need money of course but in Germany for example you need web significantly less money than in other countries so some low for like 10 to 20 thousand euros is a significant amount of money to bring a compelling case and this is basically a great opportunity because in the UK for example we would have to spend about 10 times as much due to hire lawyers and serving such a case but this is the essence right um sped in when it comes to the outcome of the case I really don't know because there is a large probability that the case will have to be referred to some of the European Court of Justice and because there has been a decision policy about data retention maybe the constant recording counts was as well we wanna have their opinion on what the German legislated at this time um maybe not so they are not compelled to but there's a large probability that they have might do that um but nobody knows what the what the European court so I think it's good that the cases have been brought to bear it would have been even better if the cases had been coordinated them more closely and the outcome is really not to be known so far text from
1 remarkable 1 thing I'd like to add and I'm not ashamed to do this year because it was just started to talk about money these lawsuits
cost money and also it's very important to get some public some that help without some assistance we have a petition on our website on the German Reporters Without Borders website that you can sign to come to work to 0 sure that you also think that this law should be turned around or it turned over some sold please everyone who speaks German wants to support as they go to our website uh Reporters Without Borders Germany and sign the petition it's easy to find and secondly all if you yourself 1 toward you know some friends who would like to do that you can join the organization you can become a member of Reporters Without Borders and you can also donate money and you can also of course say that this these donations so should goal to open the course of this of the strategic litigation cases that we have because you know it's that's that's what it comes down to we always need resources and money to fight these cases some even if the outcome of an positive for everyone for the entire from what was specifically because the outcomes could be good for everyone and not only the journalists among ourselves just
just think where you put your money I just signed up for the for the membership of the part of the borders for you were much so am I think this is this is a good cause they're having choose your uh and you're a
donation from company otherwise it's fun and think about how much for being
here and I forgot 1 thing hiring recommend to listen to all of spot Langdon and genocide can have of the information and then show then the speakers can be applied to side of the state so linking magnets and then the US and again the I