must specify the aims and duration of the measure. Generally, it must include the
type of danger on which intelligence is to be obtained and the geographic focus of
surveillance. The measures must be limited in time. This does not rule out that they
may be extended, even repeatedly.
Under constitutional law, the legislator is not restricted to a specific approach for the
internal procedural design of such formal determinations. The legislator can choose
from various organisational arrangements and may also have to consider – possibly
depending on the different types of communications subjected to surveillance – prior
authorisation by the head of the Federal Intelligence Service or the involvement of
the Federal Chancellery. Insofar as the legislator limits strategic surveillance to data
stemming from foreign communications only, an involvement of institutions with direct
political accountability is not always necessary. Moreover, the search terms do not in
every case have to be specified in advance, i.e. in the context of the determination of
the measure (cf. regarding the Article 10 Act BVerfGE 100, 313 <373 and 374>).
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Yet in line with the prior judicial authorisation required for telecommunications surveillance targeting individuals that is authorised by an individual warrant (cf. BVerfGE
125, 260 <337 and 338>; 141, 220 <312 para. 235>), the determination of a strategic
surveillance measure as such requires oversight that resembles judicial review. While
it must in principle be ensured that such oversight is conducted before the measure
is carried out, exemptions in cases of urgency are not ruled out.
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bb) The purposes of the surveillance measures that are defined in this manner must
be used to determine the further procedure for data collection and processing, which
must subsequently be accessible to independent oversight. This concerns both the
selection of the transmission channels necessary for the surveillance measure in
question, which are to be subject to restrictions [of Art. 10 GG] and are to be intercepted for analysis, and the selection of search terms. These purposes are also decisive for labelling and using the data. Rules for the use of coincidental findings made
possible by internal changes in purpose are permissible nonetheless (cf. BVerfGE
141, 220 <326 et seq. para. 284 et seq.>).
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dd) It will not be possible to limit the surveillance measures that are determined in a
differentiated manner, as set out above, to a few measures. Based on current practice, which is structured differently, representatives of the Federal Intelligence Service estimated in the oral hearing that there are approximately 100 to 200 different
surveillance interests or intelligence perspectives that are handled separetely. This
number may be reduced somewhat when these perspectives are combined, as set
out above, to form coherent but sufficiently precise and delimited categories of surveillance measures. Yet structuring surveillance measures in such a way serves to
create a clear and sufficiently differentiated profile for the respective surveillance
measures so as to guide the collection and analysis of data in detail. It is therefore
adequate that the number of surveillance measures determined in this manner is significantly higher than the number of bulk warrants that exist under current practice, of
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