sessment, the severity of legislative restrictions on fundamental rights must not be
disproportionate to the significance of the reasons that provide the justification for
such restrictions. Here a fair balance must be established between the severity of interference with rights under the provision, and the intended legislative goal; between
the individual interest and the public interest (cf. BVerfGE 100, 313 <375 and 376>;
113, 348 <382>; 120, 378 <428>; established case-law).
The severity of the challenged provisions’ interference is substantial (a). This, however, is counterbalanced by significant public interests (b). A balancing does not lead
to fundamental constitutional objections to establishing the counter-terrorism database, or to its nature; however, for the more detailed structuring of the database,
clear legal provisions establishing adequate limits are necessary, including provisions
for the effective supervision of its application (c).
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a) The transfer of information created by the challenged provisions is of considerable severity. […]
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aa) The severity of the interference by the counter-terrorism database is increased
by the fact that it permits an exchange of information among a large number of security agencies, some of whose tasks and competences differ considerably from one another. It is particularly significant here that it also includes the transfer of information
between intelligence services and the police.
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(1) The authorisations for data collection and data processing conferred on each of
the various security agencies are, so far as personal data are concerned, tailored to,
and limited by, those agencies’ specific tasks. Accordingly, the data are constitutionally subject to purpose limitations with regard to their use, and cannot automatically
be shared with other agencies. Thus, the organisation of the security agencies according to their fields of specialisation and federal considerations also takes on a special dimension relating to fundamental rights where data privacy is concerned. The
fact that information cannot be exchanged comprehensively and freely among the
various security agencies is not an indication that these agencies are organised inappropriately for fulfilling their tasks, but is, as a general rule, prescribed and intended
by the Constitution under the principle of purpose limitation pursuant to the data privacy laws.
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However, the constitutional principle of purpose limitation for data does not preclude
the possibility that the legislature may revise those purposes if such changes are justified by public interest concerns that override the constitutionally protected interests
(cf. BVerfGE 100, 313 <360>; 109, 279 <375 and 376>; 110, 33 <69>). In assessing
the proportionality of a transfer of information between different agencies, it is particularly important whether the different informational contexts are comparable. The more
the agencies’ tasks, authorities and manner of performing tasks differ from each other, the greater the significance of the transfer of related data. Therefore it is of particular significance for the constitutionality of such changes of purpose to what extent the
limitations on data gathering by the transmitting agency, or in the present instance,
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