which there are currently 17 (see para. 16 above).
Under constitutional law, this does not rule out that bulk warrants and warrants ordering telecommunications providers to divert communications based thereon can be
issued together to carry out a larger number of different surveillance measures. From
a technical perspective, cross-checking intercepted data against the search terms
assigned to the different measures can be carried out in the same setting; the resulting matches can then be reassigned to the respective measures in a subsequent
step. Constitutional law does not require that the Federal Intelligence Service follow
any specific approach for the organisation of such technical procedures.
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e) Strategic surveillance gives rise to interferences of particular weight given that it
predominantly uses formal search terms and thus also targets specific individuals.
This is not generally impermissible under constitutional law. Nonetheless, restrictions
are required that, in accordance with the principle of proportionality, take into account
the affected persons’ need for protection.
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aa) In line with current practice, the targeted interception of telecommunications of
German citizens must be ruled out. This applies both to the surveillance of international communications (cf. § 5(2) of the Article 10 Act) and to the surveillance of foreign communications. It is true that Art. 10(1) GG equally protects foreigners and
Germans and that the strategic surveillance of telecommunications gives rise to serious interferences with fundamental rights vis-à-vis both groups. However, this does
not call into question that, in the individual case, the weight of interference resulting
from such surveillance differs vis-à-vis the two groups; this must be reflected in the
design of the statutory bases authorising interferences. Generally, the weight of interference resulting from surveillance is greater vis-à-vis German citizens than vis-à-vis
foreigners in other countries because German citizens are within the reach of German authorities to a far greater extent and can thus more easily be subjected to follow-up measures. Above all, this holds true for Germans that are staying in other
countries only for a short period of time. Yet in principle, this applies to all German
citizens, given that they are subject to the personal jurisdiction of the Federal Republic of Germany, even if they live abroad for a longer period of time; they are also dependent on contact with German authorities – at least to fulfil their obligations under
the law relating to identification and identity cards –, and it can be assumed that most
of them will have closer ties to Germany and enter the country more often than foreign citizens. Therefore, in the context of strategic surveillance, the targeted surveillance of telecommunications of German citizens that is not based on specific grounds
is of such weight as to make the resulting interferences with Art. 10(1) GG appear
disproportionate. The targeted surveillance of telecommunications of German citizens must thus be subject to the requirements that apply to the individual surveillance
of telecommunications ordered by a targeted warrant (regarding these requirements
cf. BVerfGE 141, 220 <268 et seq. paras. 103 et seq.; 309 et seq. para. 228 et
seq.>).
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