the rule of law and concerns highly political, tense situations. Even insofar as assessments regarding certain states may be generalised in principle, an assessment
of possible risks in the specific case is always required if there is any indication that
data sharing could specifically jeopardise an individual affected by it. To the extent
that the shared data includes data of journalists, lawyers or other professions meriting
confidentiality protection, including to shield them from risks, a separate balancing of
interests is required that differs from the balancing conducted to determine whether
such data may be used domestically (see para. 193 et seq. above); it must generally
be subject to ex ante oversight resembling judicial review (cf. United Nations Office
of the High Commissioner for Human Rights, Letter of the Special Rapporteurs of 29
August 2016, OL DEU 2/2016, p. 7).
(2) The ascertainment that the required level of protection is adhered to is not a decision that is at the free discretion of politicians. It must be based on substantive, reality-based and up-to-date information. It must be documented and must be accessible to independent oversight (cf. BVerfGE 141, 220 <346 para. 339>). Especially
weighty instances of data sharing or those in respect of which it is difficult to assess
which legal requirements apply may necessitate further procedural safeguards, such
as prior authorisation by the head of the intelligence service or the head of the Federal Chancellery or – as in the case of the sharing of information concerning journalists or lawyers meriting protection – ex ante oversight resembling judicial review.
241
dd) Given that the data collected by the Federal Intelligence Service in the context
of strategic telecommunications surveillance stems from surveillance measures not
based on specific grounds, it is especially important that effective limits are observed
regarding the sharing of such intelligence with authorities that have operational powers, in particular law enforcement and police authorities or domestic administrative
authorities. Insofar as the Federal Intelligence Service shares intelligence with foreign
intelligence services, an obligation must be imposed on it – in line with current practice – to generally make such sharing contingent upon the assurance that the foreign
service will only share the intelligence with other bodies if the Federal Intelligence
Service consents. As the case may be, it may also be sufficient that the foreign service assures the Federal Intelligence Service that it will only share intelligence on
specific persons with other bodies if there is reliable information suggesting that the
persons on whom intelligence is shared are responsible for, or involved in, a specific
and particularly serious danger based on objective circumstances or – insofar as
sharing with intelligence services in third states is concerned – that sharing is made
conditional upon a corresponding assurance (regarding assurances in the context of
cooperation see paras. 259 et seq. and 264 below). This requires, as it does for all
such assurances, that it can be assumed that the intelligence service in question will
keep their assurances and that, in addition, the Federal Intelligence Service is granted rights to information vis-à-vis the foreign service.
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