danger frequently originate in networks of actors cooperating internationally with foreign and security policy dimensions. The challenges posed by globally connected
groups engaging in organised crime, money laundering, human trafficking, electronic
attacks on information technology systems, international terrorism and the trade in
weapons of war clearly illustrate this point (cf. Kojm, in: Goldman/Rascoff [eds.],
Global Intelligence Oversight, 2016, p. 95 et seq.; Goodman/Ischebeck-Baum, in:
Dietrich/Sule [eds.], Intelligence Law and Policies in Europe, 2019, p. 1 <esp.
para. 104 et seq.>; regarding dangers of cyber crime see also BTDrucks 18/4654,
pp. 40 and 41; regarding dangers posed by international terrorism and weapons proliferation see already BTDrucks 12/6853, pp. 20, 42). Some of these activities seek
to destabilise society (regarding international terrorism cf. BVerfGE 115, 320 <357>;
133, 277 <333 and 334 para. 133>; 143, 101 <138 and 139 para. 125>) and can
jeopardise the constitutional order, the existence and security of the Federation and
of the Länder and life, limb and liberty. These are legal interests that are exceptionally
significant under constitutional law, and the legislator may consider effective foreign
surveillance, circumscribed in accordance with the rule of law, to be indispensable as
a means for protecting these interests (cf. BVerfGE 115, 320 <358>; 143, 101 <138
and 139 para. 124 et seq.>).
Consequently, the disproportionately broader access to data that is permitted in the
context of strategic surveillance today is matched by a higher potential for danger
than in the case [concerning the Article 10 Act] decided by the Federal Constitutional
Court in 1999. For this reason, Art. 10(1) GG and the proportionality requirements
resulting therefrom in principle do not preclude the use of search terms targeting specific individuals for strategic surveillance measures. This is also why the law may,
generally and to a limited extent, provide for the retention of the entirety of traffic data
and for subsequent analysis of this data without requiring specific grounds for doing
so.
164
(d) An important aspect supporting the argument that strategic telecommunications
surveillance is justifiable is that the consequences of undertaking such surveillance
without specific grounds are somewhat mitigated by the fact that it is conducted by
an authority that, in principle, has no operational powers itself. Given the actual circumstances of cases concerning intelligence on persons located in other countries,
such intelligence can generally not lead to direct follow-up measures against them,
as German authorities are not vested with sovereign powers when acting abroad.
However, this does not call into question that surveillance measures carried out
abroad can also give rise to serious consequences for affected persons, and that
such measures also serve to provide a basis for follow-up measures against these
persons – either through data sharing or when the persons concerned subsequently
cross the border. Yet given that the data is collected by an authority that in principle
has no operational powers itself, any further use of this data depends on a screening
of the data carried out by persons that have no responsibility for operational action
themselves. Therefore, sharing this data for operational use can, and must, be sub-
165
45/87