sufficiently comprehensive random samples. Based on information provided in the
oral hearing, this must be considered indispensable, at least given the current level
of effectiveness of these automated processes.
b) Obtaining substantial assurances by the cooperating services is particularly significant with regard to the automated sharing of data that has not been fully analysed.
Given that responsibility for the analysis of data collected by the Federal Intelligence
Service is placed into the hands of a foreign intelligence service, which is not bound
by the Basic Law, specific assurances by this foreign service regarding the further
handling of data must be obtained. Given the applicability of fundamental rights
abroad, these assurances must be brought in line with the fundamental rights protections of the person under surveillance.
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Thus, cooperating services must provide an assurance, firstly, that they will immediately delete data that involves German citizens or persons within Germany, insofar
as they identify such data during their analysis. Secondly, they must provide substantial assurances regarding their handling of relationships of trust meriting confidentiality protection. Thirdly, assurances must be obtained to ensure that cooperating services will not undermine the restrictions on data sharing that are applicable to the
Federal Intelligence Service (see para. 242 above).
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Like the general ascertainment that data will be used in accordance with the rule of
law, these assurances must refer to the individually determined surveillance measure
and must be reiterated if a measure is renewed. They do not have to be made in a
form that is binding under international law, but they must be effective in practice. The
Federal Government must assess to what extent such agreements can be complemented by rights to information or notification requirements and rules on communication and intervention – such as deletion requests –, which the Federal Intelligence
Service can and must use where applicable.
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4. Finally, a separate statutory basis is required insofar as an entire set of traffic data is to be shared with foreign intelligence services in the context of cooperation, without prior selection based on specific search terms, allowing the foreign services to
retain this traffic data and to analyse it using their own methods.
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a) In this scenario, the Federal Intelligence Service hands over the data collected
by it without the possibility to exercise any control over content. Therefore, such cooperation must be subject to specific restrictions. The sharing of an entire set of traffic
data cannot be authorised continually and merely on the basis of the purpose pursued, but requires a qualified need for intelligence relating to specific indications that
a specific danger may emerge. Certain events beyond the existence of potential dangers must provide grounds for conducting surveillance measures that counter specific threats and ensure that the Federal Republic of Germany retain its capacity to act.
This may be the case, for instance, where factual indications suggest that terrorist
attacks are being prepared, military weapons are being moved on a certain route or
coordinated cyber attacks against certain states or organisations are imminent. This
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