cordance with publicly accessible law. Even for foreign surveillance, secrecy is not an
end in itself; rather, it is only justified if the type and extent of the intelligence service’s
activities requiring secrecy are democratically and publicly legitimated and if secrecy
remains within the specific limits of functional necessity.
The requirement of clear and sufficiently specific statutory powers of intelligence
services does not call into question the possibility of keeping the intelligence obtained
through such powers secret. Given that the powers only create abstract legal possibilities, they allow no conclusions to be drawn as to whether, how, to what extent and
how successfully intelligence services make use of them.
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2. To the extent that the challenged provisions authorise interferences with the privacy of telecommunications and freedom of the press, they can only be justified if
they satisfy the principle of proportionality. According to this principle, they must have
a legitimate purpose and must be suitable, necessary and proportionate in the strict
sense for achieving that purpose (cf. BVerfGE 67, 157 <173>; 120, 378 <427>; 141,
220 <265 para. 93>; established case-law). The Federal Constitutional Court has
specified the standards deriving from proportionality in several decisions concerning
covert surveillance measures carried out by security authorities and summarised
them particularly in the decision on the Federal Criminal Police Office Act (cf. BVerfGE 141, 220 <268 et seq. para. 103 et seq.>). These standards also apply to surveillance measures carried out by the intelligence services; they form the basis both
for the requirements regarding data collection and processing and for the requirements regarding data sharing. However, the instrument of strategic surveillance as a
special means of gathering foreign intelligence is not specifically considered within
these standards. Therefore, they must be specified based on the decision on strategic surveillance powers under the Article 10 Act (cf. BVerfGE 100, 313 <368 et
seq.>).
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II.
The powers to collect and process data in the framework of strategic telecommunications surveillance as a special instrument for gathering foreign intelligence are
compatible with Art. 10(1) GG in principle (see 1. below). Yet the legal provisions
must set out sufficient restrictions in relation to these powers (see 2. below).
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1. Art. 10(1) GG does not, from the outset, rule out creating powers to gather foreign
intelligence by means of strategic telecommunications surveillance. While the use of
these powers is not limited to specific and objectively determined grounds and creating these powers thus authorises serious interferences with fundamental rights without any thresholds for their use, these powers, if sufficiently restricted, may still be
justified in light of Art. 10(1) GG and the principle of proportionality by the aim of foreign surveillance and the special conditions under which it is conducted.
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a) Strategic telecommunications surveillance serves a legitimate purpose and, in
accordance with the principle of proportionality, is suitable and necessary for achiev-
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39/87