justified distinction, because the equal treatment of German citizens and EU citizens
cannot be justified by relying solely on the standards of the Basic Law, but also raises
unresolved questions regarding EU law; these include the applicability of EU law in
light of Art. 4(2) TEU and the fundamental freedoms and, depending on the resolution of this question, the substantive scope of the prohibition of discrimination under EU law ([…]; cf. also the pending proceedings before the CJEU, Privacy International, C-623/17, OJ EU 2018/C 022/41 [United Kingdom]; La Quadrature du Net
and Others, C-511/18, OJ EU 2018/C 392/10 and French Data Network and Others, C-512/18, OJ EU 2018/C 392/11 [both France]). Thus, the Federal Constitutional
Court alone cannot definitively answer the question which equality requirements the
legislator must satisfy when designing a legal framework for strategic surveillance.
Since the challenged provisions are unconstitutional for formal reasons alone, this
question is not relevant for the proceedings. Therefore, the Federal Constitutional
Court cannot refer it to the Court of Justice of the European Union. Given these circumstances, a further substantive assessment of these questions based on the Basic
Law is not required either.
III.
The challenged provisions give rise to interferences with fundamental rights on various levels.
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1. § 6(1) BNDG authorises the Federal Intelligence Service to intercept individual
telecommunications from networks determined by a warrant; in particular, this allows
for the interception of satellite signals and data transmitted via cable by using the
Federal Intelligence Service’s own systems and also by using a diversion order [addressed to telecommunications providers] pursuant to § 8 BNDG. § 14(1) BNDG authorises the Federal Intelligence Service to collect personal data in the context of cooperation with foreign intelligence services.
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a) Such interception amounts to an interference vis-à-vis complainants nos. 1 to 7
as foreign citizens living abroad. It constitutes data collection within the meaning of
constitutional law. Such interception intentionally makes the data of affected persons
accessible to the Federal Intelligence Service, allowing it to analyse the data according to content-related criteria – either on the basis of search terms to identify content
data, for analysing (possibly retained) traffic data or for sharing it with foreign public
bodies in the context of cooperation. The data that is later deleted is not just intercepted unintentionally, but is deliberately collected to analyse whether it contains relevant intelligence and, as the case may be, to use it (cf. also BVerfGE 100, 313
<366>).
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b) Given the current state of technology, the same ultimately applies vis-à-vis complainant no. 8, who is a German citizen. Since § 6(4) BNDG (where applicable in conjunction with § 14(2) BNDG) does not permit surveillance measures targeting German citizens and persons within Germany, the initial interception of their data does,
in principle, not amount to an interference. This data is merely intercepted uninten-
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