IV.
The design of a statutory basis for the cooperation with foreign intelligence services
in the context of strategic telecommunications surveillance gives rise to special constitutional challenges. In the context of such cooperation, the legislator intends to enable the Federal Intelligence Service to analyse the intercepted data traffic by means
of search terms determined by other intelligence services and to share the resulting
matches with them in an automated manner; in addition, traffic data is to be shared
with partner services without undergoing prior analysis. In return, the Federal Intelligence Service should be allowed to use the data and capacities of other services.
This mutual exchange serves to broaden the data available for the use of search
terms and to use existing capacities more effectively (cf. BTDrucks 18/9041, p. 29).
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Such legal provisions can only satisfy the requirements arising from fundamental
rights if it is ensured that the limits to strategic surveillance set by the rule of law are
not set aside through the mutual sharing of intelligence and that the Federal Intelligence Service essentially remains responsible for the data it has collected and
analysed ([…]).
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1. As a constitutional order that is open to international law, the Basic Law permits
such cooperation with foreign intelligence services. However, it requires separate
statutory provisions ensuring that fundamental rights protection is also guaranteed in
the context of international cooperation between intelligence services.
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With its preamble, Art. 1(2), Art. 9(2), Art. 16(2), Arts. 23 to 26 and Art. 59(2) GG,
the Basic Law comprehensively binds the Federal Republic of Germany to the international community and has programmatically aligned German state authority towards international cooperation (cf. BVerfGE 141, 220 <341 and 342 para. 325> with
further references). This also holds true for public security. The Federal Constitutional Court has highlighted that effective cooperation with the security authorities of other states can be especially significant for public security. In the interest of the constitutionally mandated protection of individuals, effective information sharing can require
the transfer of information collected domestically and in return rely on information
provided by foreign bodies (cf. BVerfGE 141, 220 <268 para. 102>).
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Accordingly, the Basic Law is open to cooperation of the Federal Intelligence Service with other intelligence services. Such international cooperation can be essential
for protecting Germany’s foreign and security policy interests and, in this context, for
maintaining public security; it can be based on the Basic Law’s openness to international cooperation (cf. also BVerfGE 143, 101 <152 et seq. para. 168 et seq.>). Thus,
the Federal Intelligence Service may be granted the authorisation to use its powers
for the intelligence interests of foreign services and states. These interests must be
comparable to legitimate intelligence interests of the Federal Intelligence Service and
compatible with Germany’s foreign and security policy interests. Moreover, data must
be used in accordance with the rule of law.
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