5. In principle, the strategic surveillance of foreign telecommunications
is not incompatible with Art. 10(1) of the Basic Law. However, given
that it is not based on specific grounds and essentially guided and restricted only by the purpose pursued, the power to conduct strategic
surveillance is an exceptional power that must be limited to the gathering of foreign intelligence conducted by an authority that lacks operational powers; it can only be justified by the authority’s particular
tasks and the specific conditions under which it performs them.
Therefore, the legislator must provide for the removal of telecommunications data of Germans and persons within Germany, limits to data
that may be collected, the determination of specific surveillance purposes, the structuring of surveillance based on specifically determined measures, special requirements for the targeted surveillance of
specific individuals, limits to traffic data retention, a framework governing data analysis, safeguards to protect confidential relationships
of trust, the guaranteed protection of the core of private life and obligations to delete data.
6. Sharing personal data stemming from strategic surveillance is only
permissible for the purpose of protecting legal interests of particularly
great weight and requires indications that a specific danger may
emerge (konkretisierte Gefahrenlage) or sufficiently specific grounds
for the suspicion of criminal conduct (hinreichend konkretisierter
Tatverdacht). Reports provided to the Federal Government are exempt
from these requirements insofar as they are exclusively intended to
provide political intelligence and prepare government decisions.
The sharing of personal data requires a formal decision by the Federal
Intelligence Service and must be documented by specifying the applicable legal basis. Before data is shared with foreign bodies, it must be
ascertained that the recipient will handle the data in accordance with
the rule of law; if there is any indication that data sharing could jeopardise an individual affected by it, an assessment of possible risks in the
specific case is required.
7. A legal framework on the cooperation with foreign intelligence services only satisfies the constitutional requirements if it ensures that
the limits set by the rule of law are not set aside through the mutual
sharing of intelligence and that the Federal Intelligence Service essentially remains responsible for the data it has collected and analysed.
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