the encroachment both in procedural and substantive respects. If the use of the access code, for example, is to enable an online search or the monitoring of an ongoing
telecommunications event, then depending on more details of the non-constitutional
law involved, this requires the satisfaction of stricter substantive requirements and a
judicial order or confirmation (see §§ 100a, 100b StPO; BVerfGE 120, 274 <332>).
If, in contrast, a mobile phone has been seized and the code is then to be used to
read the data stored on it, more generous encroachment thresholds may suffice for
this (see BVerfGE 115, 166 <193 ff.>). Thus, for example, under the law of criminal
procedure there is no need for a prior judicial order in the case of seizure and imminent danger (see § 98.1 StPO) and only subject to certain further requirements is a
subsequent court confirmation needed (see § 98.2 StPO).
No reason is apparent for the authorities to be able to retrieve the access codes
governed by § 113.1 sentence 2 TKG independently of the requirements for their use
and thus in some circumstances subject to less stringent conditions. The collection of
the access data governed by § 113.1 sentence 2 TKG, in view of the purposes pursued there, is necessary only if the requirements for their use are also satisfied. This
is not sufficiently guaranteed by the provision of § 113.1 sentence 2 TKG in its present wording, since the retrieval of the access codes – for example in relation to criminal investigation proceedings – is always to be permissible subject to the requirements of § 161.1 StPO, even if the use of the data intended in the retrieval should be
subject to further requirements, for example a prior judicial order. Conversely, however, the principle of proportionality does not require that the collection of the access
codes should without exception be subject to the conditions which need to be satisfied for their most intensive (“maximum”) encroaching use. All that is necessary for effective criminal prosecution and warding off of danger is to subject the supply of information on such access protections to the requirements which are to be satisfied with
regard to the purpose which they specifically intend in the retrieval situation.
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VI.
There are no further objections to the proportionality of the challenged provisions on
the basis of the complaint. There has been no challenge that data security is not adequately guaranteed, nor can one be inferred from the submissions. Nor are there objections to the fact that in view of the slightness of the encroachment no specific proceedings of legal redress are intended against information under §§ 112 and 113
TKG. Legal redress in this connection may be sought under general rules – in particular together with legal redress proceedings against the final decisions of the authorities.
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The requirements of the principle of proportionality do not give rise to a blanket requirement for the persons affected by the information to be notified of the information
under § 112 and § 113 TKG, even on the level of the non-constitutional retrieval provisions, where such provisions should be located under the law of competencies (see
BVerfGE 125, 260 <346-347>). It is not the subject of the present proceedings to de-
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