E.
In substantive terms, too, the challenged provisions are not compatible with the Basic Law. While the Basic Law does not generally preclude the use of strategic surveillance and the cooperation with other intelligence services relating thereto, the challenged provisions do not satisfy the key requirements arising from fundamental rights.
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I.
1. Like any interference with fundamental rights, interferences with Art. 10(1) GG
and Art. 5(1) second sentence GG must be based on a statutory authorisation that
satisfies the requirements of legal clarity and specificity (cf. BVerfGE 65, 1 <44; 54>;
100, 313 <359 and 360>; established case-law). Provisions authorising the covert
collection and processing of personal data are generally subject to more stringent requirements regarding legal clarity and specificity; this is because affected persons
are not aware that their data is being processed and these powers can thus not be
specified incrementally through individual warrants issued by the relevant authorities
combined with judicial review (cf. BVerfGE 141, 220 <265 para. 94>; cf. also ECtHR,
Big Brother Watch and Others v. the United Kingdom, Judgment of 13 September
2018, no. 58170/13 and others, § 306).
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There is no exemption from these requirements in relation to intelligence services.
It is true that they must largely perform their tasks covertly. Especially surveillance
carried out abroad must generally be strictly shielded from public knowledge so as to
be able to obtain intelligence without jeopardising one’s own resources and sources
(cf. BVerfGE 30, 1 <18 and 19>; 100, 313 <397 and 398>). In this respect, not only
specific measures carried out and intelligence obtained by the Federal Intelligence
Service, which is tasked with these functions, must be kept secret, but also the extent
to which the intelligence service can or cannot obtain intelligence on certain questions and the level of detail of such intelligence. Since the intelligence service must
assume that foreign services will try to spy on it, these secrecy requirements extend
deep into the structure of intelligence services. The legislator may take this into account.
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However, it cannot be inferred from the need to keep foreign surveillance secret that
as little as possible should be known about the Federal Intelligence Service itself or
that its statutory bases must largely remain undisclosed. In a democratic state under
the rule of law, there can be no general secrecy as to the statutory bases for intelligence activities and the limits of intelligence powers. Just as the overall budget and
the number of staff of intelligence services are entirely determined by Parliament and
are subject to public accountability (regarding scrutiny of the detailed use of funds cf.,
by contrast, § 10a of the Federal Budget Code, Bundeshaushaltsordnung – BHO),
their powers, too, must be openly determined by law in a clear and specific manner
and it must be clearly set out to whom they are accountable ([…]). As the state is
bound by fundamental rights, it has parliamentary and democratic responsibility for
restricting fundamental rights. Thus, intelligence services can only act covertly in ac-
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