gg, hh, ii, kk, nn ATDG, a supplementary provision is necessary that ensures an
understandable documentation and publication of the specification of these criteria,
which the legislature intended, by the security agencies .
(3) The criteria to be included in the database under § 3 sec. 1 no. 1b gg, hh, ii, kk,
nn ATDG are in their content compatible with the prohibition of disproportionate measures. Although these are data which – especially in conjunction with the other criteria
to be stored – may in some cases reveal highly personal facts, in view of the limiting
function of the database and the significance of the protection against terrorism (cf.
D. III. 3. a) bb), b above), the legislature is operating here within the discretionary
margin to which it is entitled.
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This also applies to the criteria of ethnic origin and religious affiliation under § 3 sec.
1 no. 1b gg and hh ATDG. However, particularly stringent requirements apply to
recording these criteria, because they are covered by a special constitutional protection against discrimination under Art. 3 sec. 3 GG, and religious affiliation is specially
protected from an obligation to disclose by Art. 140 GG and Art. 136 sec. 3 of the
Weimar Constitution (Weimarer Reichsverfassung – WRV). Accordingly, these data
are also deemed especially sensitive in other contexts (cf. § 3 sec. 9, § 28 secs. 6 to 9
of the Federal Data Privacy Act (Bundesdatenschutzgesetz – BDSG), Art. 8 sec. 1 of
Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal data
and on the free movement of such data, and Art. 6 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 [BGBl 1985 II p. 539]). However, in view of the importance of an effective
defence against terrorism, it is not completely impossible to consider these data, too.
Nevertheless, the Constitution requires that their consideration be restrained. This
must be taken into account by ensuring that such information can only be recorded
for identification purposes.
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cc) The free text field under § 3 sec. 1 no. 1b rr ATDG is also compatible with the
prohibition of disproportionate measures. This is not a blanket authorisation for
adding further information to the database at will, but opens the database for notes
and assessments which cannot be shown otherwise due to the standardisation and
catalogisation of the entries. […]
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4. The provisions for the use of the data are not in every respect compatible with the
prohibition of disproportionate measures.
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a) However, the provisions on the request and use of the simple basic data under
§ 3 sec. 1 no. 1a ATDG are constitutionally unobjectionable.
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aa) § 5 sec. 1 sentence 1 and 2 ATDG provide the participating agencies with direct
access to these data as unmasked information. An agency can thus make searches
both based on a name, and searches that relate to individual or multiple types of information listed in § 3 sec. 1 no. 1a ATDG, and which therefore help identify persons not
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