low). This basic framework to be determined by the legislator includes the requirement that the Federal Intelligence Service analyse intercepted data without undue
delay (cf. BVerfGE 100, 313 <385 and 386>; 125, 260 <332>; see also the corresponding provision in § 6(1) first sentence of the Article 10 Act and the accompanying legislative materials BTDrucks 14/5655, p. 13), the applicability of the principle of
proportionality to the selection of search terms – which is already provided for in the
existing intelligence service manual –, provisions governing the use of intrusive methods of data analysis, in particular complex forms of data cross-checking (regarding
the particular need for safeguards applicable to the analysis of strategic surveillance
cf. also ECtHR, Big Brother Watch and Others v. the United Kingdom, Judgment
of 13 September 2018, no. 58170/13 and others, §§ 346 and 347), and adherence
to prohibitions of discrimination under the Basic Law (regarding this requirement cf.
BVerfGE 115, 320 <348>; 133, 277 <359 and 360 para. 189>; regarding the applicable law in Sweden cf. ECtHR, Centrum för Rättvisa v. Sweden, Judgment of 19 June
2018, no. 35252/08, § 29). The legislator may also have to lay down how algorithms
may be used, in particular to ensure that their use can generally be reviewed by the
independent oversight regime.
h) Confidentiality in relationships of trusts – such as relationships between journalists and their sources, or lawyers and their clients – requires special protection. Such
protection already follows from Art. 10(1) GG and the proportionality requirements
derived therefrom. It corresponds to a greater need for protection that may arise for
any of the communicating parties involved in such relationships. For the affected professions, this protection is also guaranteed by Art. 5(1) second sentence GG or the
fundamental rights that otherwise protect the respective professions – insofar as they
are applicable to foreign surveillance according to their personal scope of protection.
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The targeted surveillance of communications of professions and groups of persons
whose communication relations require special confidentiality protection must be limited. The use of search terms resulting in the targeted interception of telecommunication connections belonging to such persons cannot simply be justified by the assertion that they might serve to obtain potentially relevant intelligence. It is not justified
that persons doing journalistic work face a higher risk of surveillance than other fundamental rights holders and that the information which such persons gather from their
contacts or research can be siphoned off for the pursuit of security interests (cf. BVerfGE 107, 299 <336>). The same applies accordingly to lawyers. The targeted surveillance of lawyers as messengers must be tied to qualified thresholds, including in the
context of strategic surveillance. These thresholds must ensure that the intrusion into
relationships of trust is only permissible where it is used to investigate dangers that
are deemed serious in the individual case and to investigate particularly serious criminal acts, or to apprehend certain dangerous criminals. This must be based on sound
intelligence. For the rest, surveillance and analysis are only permissible where, in a
balancing of interests conducted in the individual case, the public interest in obtaining
the information takes precedence over the affected person’s interest in the protection
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52/87