정보기관의 해외통신정보활동에 대한 헌법적 한계 ― 독일연방정보원법(BNDG) 위헌결정에 나타난 위헌심사기준과 내용을 중심으로 ―

초록

On May 19, 2020, the Federal Constitutional Court of Germany(BVerfG) decided the provisions of the Federal Intelligence Service Act(BNDG), which regulated the Strategic Foreign-Telecommunications-Surveillance of the Federal Intelligence Service(BND), as inconsistent with the Federal Constitution(GG). Strategic Foreign-Telecommunications- Surveillance measures are means by which the Federal Intelligence Service collects important information related to foreign affairs and national security policies of Germany. Through this decision, the FCC concluded that the effect of fundamental rights of the Federal Constitution should restrain the activities of German state agencies, even when German state agencies operate abroad. Although the FIS's foreign intelligence activities play an important role in providing the information necessary to make decisions on German foreign and security policy, the exercise of state power must be controlled by the Federal Constitution even abroad. The FCC found that the FISA failed to comply with the quotation requirement (Zitiergebot) of Article 19(1) of the Federal Constitution from a formal perspective. The legislator saw that the FIS conducts strategic communications and surveillance activities against foreigners abroad, so their fundamental right was not an issue, but the FCC saw that the German authority should be bound by the Constitution even when operating abroad. This is a decision in consideration of the development of information and communication technology, the importance of today's communication life in personal life. SFTS has a characteristic that it is difficult to guarantee fundamental rights of foreigners or to solve rights remedies. For this reason, the FCC proposed a constitutional standard focused on procedurally and strictly controlling the FIS's SFTS measures and ensuring them. The collection of information and the transfer of the collected information should be distinguished, and the legal basis for each step should be clearly defined and the fundamental rights should be guaranteed. It should be ensured that the core areas of personal privacy are not infringed through communication restrictions and that reporters or lawyers are not infringed upon communication secrets. Above all, an independent control agency system should be ensured so that procedural control over SFTS measures can be guaranteed. When these constitutional requirements are met, the state foreign intelligence activities in a democratic state can be justified.

키워드