Statement of DE-CIX Management GmbH on the decision of the Federal Administrative Court on the practice of strategic telecommunications monitoring according to § 5 G10

Frankfurt (Main), Leipzig, 31 May 2018. In mid-September 2016, DE-CIX Management GmbH filed a lawsuit with the German Federal Administrative Court in Leipzig against the Federal Republic of Germany, represented by the Federal Ministry of the Interior. DE-CIX Management GmbH’s objective with the lawsuit was to subject to a judicial review the practice of strategic surveillance of telecommunications according to § 5 G10 in our company.

Based on our current knowledge, we come to the following assessment:

The decision of the Federal Administrative Court provides us with legal certainty insofar as DE- CIX Management GmbH bears no responsibility for the violations of Art. 10 GG that result from the tapping of German domestic communications signals by the BND at the Internet Exchange in Frankfurt. The Federal Administrative Court clarified that responsibility for the legality must be borne exclusively by the Federal government and its institutions.

Although these extensive violations were brought into the proceedings and presented and explained in detail, for reasons that are incomprehensible to us they were not dealt with in the proceedings by the Federal Administrative Court. The sole responsibility for the protection of the rights of citizens and companies is consequently the responsibility of the G10 Commission, which apparently now also has to be responsible for the treatment of internal German communications.

The question of whether DE-CIX is actually obliged to implement orders that may be formally correct, but from our point of view remain questionable, could not be finally clarified before the Federal Administrative Court in Leipzig. We will submit these legal questions to the Federal Constitutional Court in Karlsruhe.

The decision raises questions concerning effective legal protection: on the one hand, where, in the absence of detailed knowledge, citizens are unable to demonstrate their own concern and their claims are therefore dismissed, and, on the other hand, the obligated companies can not enforce their rights and the rights of citizens.

In addition, DE-CIX examines to what extent further action before the Federal Administrative Court in Leipzig can assert its own basic rights of the company and its employees as a communication participant and effectively safeguard it.

We always have a duty to our customers to ensure that strategic telecommunications monitoring of their telecommunications takes place only in a lawful manner.

Further background information:

  1. DE-CIX Management GmbH is, as became known through the public questioning before the German Parliament’s Committee of Inquiry into the NSA, a recipient of official instructions which are based on the G10 Act and which serve so-called “strategic signals intelligence”.
  2. From the very beginning of these measures, in 2009, the nature and the scope of execution were a point of contention between DE-CIX Management GmbH and the Federal Intelligence Service (BND), subsequently the Federal Chancellery.
  3. We have had grave doubts as to the legality of this strategic signals intelligence, not least due to the expert opinion of Prof. Dr. Hans-Jürgen Papier, former President of the Federal Constitutional Court a.D., which was published in Fall 2016.
  4. DE-CIX Management GmbH therefore filed a lawsuit with the German Federal Administrative Court in Leipzig against the Federal Republic of Germany, represented by the Federal Ministry of the Interior, in mid-September 2016. On 30 May 2018 the Federal Administrative Court of Germany heard the lawsuit.