ately without being used. The legislator may only provide for an exemption insofar
as the data in and of itself indicates an immediate and specific danger (unmittelbar
bevorstehende konkrete Gefahr) to life, limb or liberty of the person, vital interests of
the public or the existence or security of the Federation or of a Land. Directions in an
internal manual referring to general principles of criminal law are not sufficient to justify such a power (in contrast to this, cf. 3.9 of the SIGINT Manual); rather, an explicit
statutory provision is required. Such use may have to be documented (see para. 291
below) and requires oversight that resembles judicial review.
c) Moreover, the legislator must determine the purposes of telecommunications surveillance and of the use of intelligence thus obtained in sufficiently clear and specific
statutory provisions (cf. BVerfGE 100, 313 <372>).
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aa) Given that telecommunications surveillance is a particularly intrusive instrument
for gathering foreign intelligence, it must be substantially restricted to sufficiently limited and precisely defined purposes, for which the legislator is responsible. Within the
limits of the relevant legislative competences, the purposes that can be taken into
consideration are those that aim to protect high-ranking interests of the common
good, the violation of which would result in serious harm to external and domestic
peace or to the legal interests of individuals (cf. BVerfGE 100, 313 <373>).
176
cc) In contrast to this, measures carried out in the context of surveillance of foreign
telecommunications that are, from the outset, only aimed at providing information to
the Federal Government to prepare governmental decisions can be permissible even
if they are not aimed at the early detection of dangers. To this end, the legislator may
provide for surveillance measures for the entire range of tasks performed by the Federal Intelligence Service. It may, for example, tie these measures merely to orders of
the Federal Government – yet the legislator must restrict them, in line with its legislative competences, to measures concerning foreign and security policy. However, if
the legislator does so, it must ensure that a change in the purpose for which the data
may be used is excluded in principle and that the intelligence obtained through such
surveillance not be shared with other bodies (see para. 223 et seq. below), aside
from special exemptions (see para. 228 below).
177
d) Insofar as they are used to pursue the purposes defined by law, the legislator
may in principle permit strategic surveillance measures without requiring specific
grounds and does not have to tie them to objective thresholds (see para. 157 et seq.
above). Yet as the power to conduct strategic surveillance is only guided by the purpose pursued, the legislator must set out procedural safeguards adequately ensuring
that the power is based on the respective purposes and thus also allow for oversight
([…]).
178
aa) The granting of such powers must be based on a formal determination of precisely defined surveillance measures. This amounts to a designation of the specific
purpose of the measure within the meaning of data protection law. As a basis for justifying such a measure vis-à-vis the persons under surveillance, the determination
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