Government or – prior to restrictions of an individual’s [fundamental right under Art.
10 GG] – at the early detection of dangers. In these areas, the legislator may confer
upon the Federal Intelligence Service the power to carry out strategic telecommunications surveillance. The fact that essentially such surveillance is only guided and
restricted by the purpose pursued is not from the outset incompatible with the proportionality requirements (on the strategic surveillance of international telecommunications BVerfGE 100, 313 <373 et seq.>).
(a) In this respect, the specific tasks that form part of foreign surveillance must be
considered. Its primary aim is not to carry out targeted investigations of acts that have
already been established and thus to gather information on clearly defined situations;
rather, it mainly serves to detect and identify relevant information regarding intelligence interests that can only be defined in abstract terms. Thus, the role of foreign
surveillance is to create a comprehensive informational basis, observe a broad range
of developments, evaluate the information obtained, assess its relevance and make
it available, in a condensed form, to the Federal Government and, as the case may
be, other recipients. Given that potential intelligence interests concern the entire field
of foreign and security policy, they relate to a wide range of information.
158
(b) In respect of this task, strategic surveillance without specific grounds that is essentially guided solely by the purpose pursued can be justified under constitutional
law. In contrast to measures for the early detection of domestic dangers, it is significant that foreign surveillance is aimed at understanding and providing information
about circumstances which cannot be directly perceived on a daily basis by German
bodies or the German public. Its purpose is to yield intelligence regarding developments in contexts that are difficult to interpret on the basis of domestically obtained
information only and that in part concern countries whose openness in terms of information structures is limited. Yet above all, the special conditions under which this
task must be performed are decisive. Foreign surveillance concerns occurrences in
other states, where the German state generally has no or only few resources for gathering intelligence and where it is not vested with sovereign powers granting it direct
access to information (cf. also ECtHR, Big Brother Watch and Others v. the United
Kingdom, Judgment of 13 September 2018, no. 58170/13 and others, § 518). In the
interest of the Federal Republic of Germany’s security and capacity to act, the intelligence that can be obtained must also include information that is deliberately withheld
from Germany – possibly with negative intentions – and is kept secret within the other
jurisdiction. Under the law of the state targeted by surveillance measures, such measures may also be illegal, or at least unwanted. The intelligence service may then be
faced with defences of the targeted states, which use their police and intelligence
services to obstruct and undermine surveillance. Therefore, the work is particularly
exposed and precarious, requiring extraordinary means.
159
It must also be taken into account that surveillance is not solely characterised by
different intelligence services working against each other; instead, these services also cooperate to gather intelligence on matters concerning both the Federal Republic
160
43/87