cept a considerable number of foreign communications from within Germany. Moreover, communication in society has become increasingly international. In view of
cross-border services, exchanges – both within states and across national borders –
between citizens as fundamental rights holders mainly rely on telecommunications
services that do not differentiate between domestic and foreign communications (cf.
Kojm, in: Goldman/Rascoff [eds.], Global Intelligence Oversight, 2016, p. 95 <100
and 101>). Given that, under the current realities of information technology, actions
and communication relations of all kinds have become increasingly digital, and given
the constant increase in data processing capacities, the possibilities for conducting
telecommunications surveillance extend to broad areas of all of civil society, even
outside a state’s own jurisdiction – just as domestic communications are also subject
to surveillance by other states (cf. BTDrucks 18/12850, p. 1283 et seq.).
In light of such developments, an understanding of fundamental rights according to
which their protection ended at national borders would deprive holders of fundamental rights of all protection and would result in fundamental rights protection lagging
behind the realities of internationalisation ([…]). It could undermine fundamental
rights protection in an increasingly important area that is characterised by intrusive
state action and where – in the field of security law – fundamental rights are especially significant in general. By contrast, in binding the state as the relevant actor, Art.
1(3) GG accounts for such novel risks and helps bring them into the general framework of the rule of law that is created by the Basic Law.
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II.
1. The challenged provisions affect the complainants’ fundamental rights under Art.
10(1) and Art. 5(1) second sentence GG. The provisions authorise the collection of
personal data through covert telecommunications surveillance and thus concern the
guarantee of the privacy of telecommunications in Art. 10(1) GG. Accordingly, the
sharing of data obtained through such measures also affects the protection afforded
by the privacy of telecommunications, and such sharing must therefore also be measured against Art. 10 GG. The challenged provisions also affect the fundamental right
under Art. 5(1) second sentence GG of the complainants who work as journalists.
They authorise the Federal Intelligence Service to collect, process and share data
from telecommunications generated in the context of these complainants’ professional activities, including targeted surveillance and analysis of their communications with
journalistic sources (cf. ECtHR, Weber and Saravia v. Germany, Decision of 29 June
2006, no. 54934/00, §§ 143 et seq.; Big Brother Watch and Others v. the United Kingdom, Judgment of 13 September 2018, no. 58170/13 and others, §§ 476, 490 et seq.;
see also BVerfGE 100, 313 <365>).
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2. In the present proceedings, there is no need to determine whether the challenged
provisions, specifically the distinction made between German citizens and EU citizens, are compatible with equality protections. In particular, it must remain unresolved whether § 6(3) BNDG, including in conjunction with § 14(2) BNDG, makes a
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33/87