b) However, cooperation in the field of telecommunications surveillance must be designed in such a way that fundamental rights protection against covert surveillance
measures and the resulting requirements regarding data collection, processing and
sharing are not circumvented. This applies in particular to the protection against domestic surveillance, which must not be compromised through the free sharing of intelligence stemming from surveillance measures by foreign intelligence services that
target Germany. Such sharing in a circle (Ringtausch) is not permissible under constitutional law. This applies accordingly with regard to the fundamental rights requirements that the Federal Intelligence Service must satisfy when conducting surveillance of foreign telecommunications.
248
Foreign intelligence services themselves may only be granted the power to carry
out surveillance measures from within Germany and such measures may only be tolerated if there are specific grounds for carrying out the measures and if detailed statutory provisions ensure that fundamental rights apply without any reservations, both in
substantive and in procedural terms. The protection afforded by fundamental rights
entails a duty of the German state to protect individuals under Germany’s jurisdiction
against surveillance measures conducted by other states in a manner that violates of
fundamental rights ([…]). Cooperation cannot exempt the German state from this duty.
249
c) In addition, the cooperation with foreign intelligence services requires a separate
statutory basis. Firstly, legal provisions are necessary to the extent that the Federal
Intelligence Service wants to gain access to surveillance open to foreign intelligence
services, and wants to obtain and use the data collected by them. These provisions
must cover both the sharing of search terms by the Federal Intelligence Service with
a foreign intelligence service for use and analysis by that service and the retrieval or
receipt of data made available by a foreign partner for analysis by the Federal Intelligence Service by means of selectors or other techniques (regarding the necessity of
such rules cf. also ECtHR, Big Brother Watch and Others v. the United Kingdom,
Judgment of 13 September 2018, no. 58170/13 and others, § 424). Such provisions
must reflect the possibility inherent in such practices that obligations under domestic
law could be circumvented (cf. also ECtHR, loc. cit.) and the specific risks to fundamental rights which may arise from cooperation. In this respect, the law must set out
to what extent the Federal Intelligence Service can, in the context of cooperation, receive and use intelligence on specific individuals from foreign services in respect of
which there is an indication that it was obtained through the surveillance of German
domestic communications. Since the legislator has not enacted such provisions yet,
the present proceedings are not concerned with the requirements applicable to such
provisions.
250
Secondly, legal provisions are required to the extent that the Federal Intelligence
Service is to be granted powers for surveillance and data sharing that it can also use
in the interest and under the guidance of other intelligence services. If the legislator
wants to allow the Federal Intelligence Service to analyse the data collected by it by
251
65/87