by the foreign partner and the resulting matches. The Federal Intelligence Service
must assess whether the use of the search terms as such and the data selected
through their use is subject to limits arising from fundamental rights.
aa) With regard to the search terms determined by foreign partners, this requires an
assessment – in line with current practice – of whether these serve the purposes of
the respective surveillance measures. The foreign intelligence services must sufficiently demonstrate why they want to use specific search terms. In addition, both the
search terms and the resulting matches must be checked, for instance against lists
of persons in danger; such checks aim to identify, where possible, data concerning
persons or situations in respect of which there is an indication that they merit special
protection, such as dissidents at risk of persecution or whistle-blowers. The existing
framework provides for safeguards with regard to national interests or objectives of
the European Union; likewise, special safeguards are required with regard to fundamental rights.
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This also applies to persons whose work requires special confidentiality protection
under constitutional law, in particular lawyers and journalists meriting protection.
However, surveillance measures vis-à-vis these professions are not entirely ruled out
even in the context of cooperation. Yet in this context as well, they can only be permissible subject to a qualified protection of legal interests, thresholds and a balancing
of interests (see para. 194 et seq. above). In order to ensure that these requirements
are met, search terms that serve to intercept telecommunications of such persons
must be identified through filtering where possible, and must then undergo manual
screening that includes the required balancing. To determine whether the requirements for the use of such selectors are met, the foreign partner must, where necessary, plausibly demonstrate why it wants to use them. Accordingly, prior to any automated sharing with a foreign intelligence service, the Federal Intelligence Service
must check the data identified by the search terms to determine whether it can be
attributed to persons whose communications require special confidentiality protection, including to prevent government crackdowns, and must, where necessary, manually screen this data. Insofar as decisions are made in the individual case in this regard, they must be subjected to oversight resembling judicial review.
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bb) The assessment of search terms must be as effective as possible. In line with
current practice, an automated assessment can initially be considered. The Federal
Intelligence Service must be required by law to gather possible indications that certain persons merit or need special protection, using the intelligence and experience
obtained in the course of its work, and combine telecommunications identifiers relating to these persons in such a manner that it can filter search terms and data designated for sharing. The same applies accordingly to the identifiers of journalists,
lawyers or similar persons, groups or organisations whose communications are afforded special confidentiality protection. The databases and filtering processes used
to this end must be continually updated and developed further. Where necessary,
these automated processes must be complemented by manual screening based on
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