is not vested with sovereign powers, and it is the exclusive responsibility of the Federal Intelligence Service, an authority that generally does not have its own operational
[police] powers. The primary role of foreign surveillance is to create an informational
basis, evaluate the information obtained, assess its relevance and make it available,
in an edited form, to the Federal Government and, as the case may be, other recipients. However, one of the aims of such surveillance is often to take action against individuals – possibly even through sharing intelligence with other states; therefore, it is
a serious interference nonetheless. Yet the Federal Intelligence Service itself cannot
take such action against individuals abroad. Where other bodies take action against
individuals based on such information, they have to rely on the sharing of data, which
can, and must, be restricted by the principle of hypothetical re-collection of data (see
paras. 216, 217 and 220 et seq. below).
(4) By contrast, the exceptionally broad scope and the indiscriminate effect of strategic telecommunications surveillance is particularly aggravating. Such surveillance
can be used against anyone without requiring specific grounds; it is merely restricted
by the specific purposes pursued. Objective thresholds for the use of this power are
not required, neither with regard to the situations in which surveillance measures are
permissible nor with regard to the individuals affected by them. As long as it stays
within the boundaries of the purposes of surveillance measures, which are only determined in the abstract, the authority vested with such powers can freely decide
which networks, data and individuals it wants to target.
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Such powers have an exceptional reach, particularly given the realities of modern
information technology and its significance for communication relations. As regards
the intensity of interference resulting from these powers, they cannot be compared to
the powers [under the Article 10 Act] in respect of which the Federal Constitutional
Court rendered a decision in 1999 concerning strategic surveillance measures targeting international communications (where one communicating party is in Germany and
the other is abroad; Inland-Ausland-Kommunikation). At the time, telecommunications surveillance was de facto restricted to narrowly defined means of telecommunication that were solely used in specific situations (cf. BVerfGE 100, 313 <379 and
380>), whereas today the volume of intercepted data alone is disproportionately larger. The data flows targeted by surveillance carry an immense volume of electronic
telecommunications, which are then analysed. Given the ubiquitous and diverse use
of communication services, all forms of activity of individuals and of human interaction are increasingly reflected in electronic signals and thus become a potential target
of telecommunications surveillance. Thus, surveillance covers communications
reaching deep into everyday life, including highly private and spontaneous communications and the sharing of images or files. […]
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(5) Strategic telecommunications surveillance gives rise to interferences of particular weight insofar as it also allows for targeted surveillance of specific individuals.
Surveillance thus acquires a new dimension that did not exist with regard to the powers reviewed by the Court in its decision in 1999 [concerning the Article 10 Act]. The
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