Germans or persons within Germany are involved on both sides are required in any
case, since, in this constellation, telecommunications surveillance that is not based
on specific grounds is impermissible from the outset.
Once domestic communications have been removed, strategic surveillance measures can be aimed at two things: firstly, the surveillance of communications designated as “international” in § 5 of the Article 10 Act (communications where one communicating party is located within Germany and the other is abroad, Inland-AuslandKommunikation), and, secondly, the surveillance of exclusively foreign
communications (where all communicating parties are abroad, Ausland-AuslandKommunikation). Both types of surveillance must be measured against Art. 10(1) GG
in the same way. In certain respects, however, the surveillance of communications
between two foreign interlocutors results in interferences of lesser weight than the
surveillance of international communications between an interlocutor abroad and a
domestic interlocutor, given that the latter intercepts communications that are directly
linked to domestic matters and thus reaches deeper into the domestic legal order.
This is why the surveillance of foreign telecommunications is, in some respects, subject to less strict requirements (cf. para. 177 below regarding the possibility of gathering intelligence irrespective of dangers in order to provide information to the Federal Government; cf. paras. 179 and 180 below regarding the possibility of selecting the
search terms only after the [purposes and duration of the] surveillance measure have
been determined; cf. paras. 254 et seq. and 262 et seq. below regarding automated
sharing of data with foreign intelligence services in the context of cooperation). If the
legislator wants to take into account the differing weight of the interferences arising
from the two types of surveillance measures in question and if it therefore wants to
provide for different legal provisions, it must require the deletion of international communications, too.
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bb) The requirements regarding the removal of domestic and international communications must be set out in clear provisions. As far as technically possible, automated filters must be used to ensure that the Federal Intelligence Service’s staff does not
obtain knowledge of such telecommunications data. The indiscriminate interception
of all data, including domestic data, by the Federal Intelligence Service’s systems is
not impermissible from the outset as long as it is technically unavoidable. However,
in that case the legislator must enact clear provisions requiring that data stemming
from domestic communications and, as the case may be, international communications be technically separated and deleted without any trace, using any means available, before the data is manually analysed. The legislator must impose an obligation
on the intelligence service to continually develop filtering methods and to keep them
up to date with developments in science and technology.
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Where such filtering cannot fully guarantee that the data is separated, the further
use and analysis of the prefiltered data is not precluded. Yet the law must then ensure that, in the event of telecommunications data of Germans or persons within Germany being identified in the context of further analysis, this data is deleted immedi-
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