means of search terms provided by its foreign partners or to automatically share prefiltered content data or, as the case may be, even unfiltered traffic data with foreign
services, it must create a separate statutory basis for this, as it essentially did when
enacting §§ 14 and 15 BNDG.
2. The constitutional requirements applicable to such a statutory basis are designed
to ensure that the general limits to strategic surveillance arising from fundamental
rights are upheld as effectively as possible in the context of cooperation.
252
Given that such cooperation can only take place if the strict protection of domestic
communications is guaranteed, it must be limited to data obtained through the surveillance of foreign telecommunications (see para. 170 et seq. above). Thus, with regard to data collection and analysis by the Federal Intelligence Service in the context
of cooperation, it must be ensured that, where possible, telecommunications data of
persons within Germany and German citizens is not shared, or, if it is only identified
at a later stage, is immediately deleted, so as to uphold the protection guaranteed by
Art. 10(1) GG. This also means that both the search terms provided by foreign partners and the data that is designated for automated sharing with foreign partners must
be filtered (for more detail see paras. 255 et seq. and 264 below). The requirements
set out above (see para. 170 et seq.) also apply in this case. Moreover, for the cooperation between intelligence services, too, the legislator must determine, in a sufficiently precise and clear manner, the purposes for which surveillance conducted
through the interaction of intelligence services is permissible, and must limit them to
the protection of high-ranking interests of the common good (see paras. 175 and 176
above). Likewise, cooperation on the basis of a formal determination of precisely defined surveillance measures must be categorised by aim, object and duration and
structured by procedural safeguards (see para. 178 et seq. above). This does not rule
out that such joint, yet delimited surveillance measures can be part of longer-term
cooperation on a broader scale, which may be based on a framework agreement.
Like the sharing of individual pieces of intelligence, the automated sharing of data
requires an ascertainment that the shared data is used in accordance with the rule of
law, which must be documented (see para. 233 et seq. above). This ascertainment
must be obtained for each of the joint surveillance measures respectively; insofar as
this becomes necessary in the course of cooperation, it must be reaffirmed (regarding the necessity of assurances, which are of special significance in the context of
cooperation, see paras. 259 et seq. and 264 below).
253
3. Specific requirements apply insofar as, in the context of cooperation, the Federal
Intelligence Service wants to use search terms determined by a foreign intelligence
service and then automatically share the resulting matches with the foreign partner
without first conducting a content-based analysis. The legislator must create rules for
this situation that ensure the Federal Intelligence Service’s responsibility with regard
to fundamental rights for the data collected by it and its processing.
254
a) First of all, this requires a thorough assessment of the search terms determined
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