services into law for the first time. Such cooperation was a major focus of the investigations conducted by the NSA Committee of Inquiry (cf. BTDrucks 18/12850, pp.
516 et seq.; 706 et seq.; 761 to 1007). According to the legislative documents (BTDrucks 18/9041, p. 29) and submissions of the Federal Government, such cooperation aims to facilitate the effective use of intelligence resources, to expand the resources from which intelligence services can gather data and to continually share
intelligence know-how, particularly technical abilities and suitable search terms.
[…]
27-29
8. These processes are subject to both specific and general rules on transparency,
internal monitoring and oversight. Internally, the Federal Intelligence Service is obliged to label collected data (§ 10(1) BNDG); special documentation is required for cases of impermissible data processing (§ 10(6) and § 11 fourth sentence BNDG) and
for automatic data sharing with foreign partners (§ 15(2) BNDG). Affected persons
have rights to information, yet the exercise of such rights does not extend to the origin of the data and requires that affected persons demonstrate a special interest in
the requested information (§ 22 BNDG). Notification requirements only apply in cases
where telecommunications in which Germans or persons within Germany are involved are collected impermissibly and subsequently stored (§ 10(4) second sentence BNDG); there are no notification requirements vis-à-vis affected foreigners in
other countries, even in case data is collected or processed impermissibly.
30
§ 16 BNDG establishes a special oversight body, the Independent Body (Unabhängiges Gremium); its specific oversight powers derive from §§ 6 to 15 BNDG. General oversight to ensure data protection falls to the Federal Commissioner for Data
Protection and Freedom of Information (§§ 32 and 32a BNDG). A department within
the office of the Federal Commissioner for Data Protection and Freedom of Information is competent to oversee the Federal Intelligence Service. In addition, special
oversight competences are assigned to the Article 10 Commission (G 10-Kommission) in cases where notification is deferred pursuant to § 10(4) BNDG. The power to
conduct general parliamentary oversight falls to the Parliamentary Oversight Body
(Parlamentarisches Kontrollgremium) and its Permanent Representative, and this
body also has specific powers in relation to the surveillance of foreign telecommunications (§ 6(7) third sentence, § 13(5) second sentence BNDG).
31
According to the former chair of the Independent Body and the Federal Commissioner for Data Protection, oversight by either body is restricted in practice by the
need of cooperating intelligence services to maintain secrecy and by existing confidentiality agreements (third party rule).
32
II.
With their constitutional complaint, the complainants assert that their fundamental
right to the privacy of telecommunications under Art. 10 of the Basic Law (Grundgesetz – GG) has been violated. Insofar as they work as journalists, they also claim that
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33