the agency entering data into the database, coincide with those under which the requesting authorities are allowed to collect data. Accordingly, a change of purpose is
not allowed if it circumvents fundamental rights-based restrictions on the use of certain investigative methods, or in other words, if under the Constitution, the information
could not have been legally collected either in this way, or at all, for the revised purpose, even if there had been a corresponding legislative basis (cf. BVerfGE 109, 279
<377>; 120, 351 <369>). […] Constitutional requirements for the gathering, storage
and processing of data must not be circumvented by allowing agencies whose tasks
place them under less rigorous standards to transmit data to agencies which, for their
part, are subject to more rigorous standards.
(2) Accordingly, data pooling between the intelligence services and the police is of
high significance and is, in general, subject to narrow constitutional constraints. This
is because the police and intelligence services have tasks that differ sharply from one
another. Accordingly, they are subject to fundamentally different requirements with
respect to the openness with which they perform their tasks, as well as with respect to
data collection.
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(aa) The intelligence services have the task of gathering information even in advance of situations that pose a threat. […]
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In keeping with this range of tasks that is performed in advance of such situations,
the intelligence services have extensive data-gathering powers that are neither clearly defined with reference to specific areas of activity, nor particularly detailed as to the
means to be applied. For the authorities for protecting the Constitution, they include
methods and instruments for covertly procuring information, including the use of confidants and sources, observations, video and sound recordings, fictitious identification
papers and fictitious vehicle number plates (cf. § 8 sec. 2 of the Federal Constitution
Protection Act, Bundesverfassungsschutzgesetz – BVerfSchG; § 6 sec. 1 of the
Baden-Württemberg Land Constitutional Protection Act, Landesverfassungsschutzgesetz – LVSG). Under § 5 of the Act Restricting Secrecy in Correspondence,
the Mail, and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und
Fernmeldegeheimnisses – G 10, Article 10 Act), the Federal Intelligence Service
may, in order to obtain information, and under certain circumstances, use strategic
monitoring to filter international telecommunications connections for certain search
criteria (cf. BVerfGE 100, 313 <368 et seq.> on the predecessor provision of the old
§ 3 sec. 1 G 10). Irrespective of the constitutional requirements, which are also differentiated here and are not concerned in the proceedings at hand, these powers reflect
the breadth of tasks of the intelligence services, and are characterised by relatively
low thresholds for interference. Furthermore, the intelligence services generally gather data covertly. The principle of openness in data collection does not apply to them,
and they are largely exempted from obligations of transparency and reporting to the
persons concerned. The options for individuals seeking protection of their rights are
correspondingly meagre. In part they are even entirely superseded by political supervision (cf. Art. 10 sec. 2 sentence 2 GG).
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