may provide for exemptions, which must be balanced against the constitutionally protected legal interests of third parties and must serve to ensure the effective performance of the intelligence service’s tasks. Even though such exemptions must be limited to what is absolutely necessary (cf. BVerfGE 109, 279 <364>; 125, 260 <336>;
141, 220 <283 para. 136>), the notification requirements regarding strategic surveillance are not extensive.
a) In relation to strategic surveillance concerning persons within Germany, differentiated legal provisions are required that ensure that these persons are notified wherever possible. This is particularly important where, despite the existing filtering mechanisms, communications in which Germans or persons within Germany were
involved are not technically separated from other data, but are only identified during
manual screening and not immediately deleted.
268
In relation to persons who are abroad, the legislator may, in principle, refrain from
imposing notification requirements for strategic surveillance measures (cf. Marxsen,
Die Öffentliche Verwaltung – DÖV 2018, p. 218 <227>; Dietrich, in: Schenke/
Graulich/Ruthig [eds.], Sicherheitsrecht des Bundes, 2nd ed. 2019, § 6 BNDG
para. 10). There is a fundamental interest in ensuring that measures carried out by
the Federal Intelligence Service that have a direct impact on other countries or are
carried out in those countries go unnoticed so as to ensure that the Federal Intelligence Service can perform its tasks in the long term. Any formal and specific disclosure of the fact that the Federal Intelligence Service is conducting surveillance in another state or of the possibilities for doing so can jeopardise its sources (cf. Gusy, in:
Schenke/Graulich/Ruthig [eds.], Sicherheitsrecht des Bundes, 2nd ed. 2019, BNDG
preliminary remarks para. 10). Notification requirements vis-à-vis persons living
abroad can only serve their purpose to a very limited extent. Compared to notification
provided to persons living in Germany, notification provided to persons living abroad
can neither provide a basis for legal protection that is attainable in practice (cf. BVerfGE 65, 1 <70>; 109, 279 <363 and 364; 367>; 120, 351 <361>; established caselaw), nor can it achieve the aim of creating public trust or of generating democratic
discourse on such measures (cf. BVerfGE 125, 260 <335 and 336>; 133, 277 <366
para. 206>; 141, 220 <282 and 283 paras. 135 and 136>; established case-law). Instead, notifying affected persons in another legal order may even be dangerous, as it
may expose those persons to the attention and mistrust of the authorities in their state
and, as the case may be, third parties.
269
Thus, the requirements for transparency of state action are significantly less strict
and there are fewer possibilities for obtaining individual legal protection in practice.
Recourse to the courts pursuant to §§ 40, 50(1) no. 4 of the Code of Administrative
Court Procedure (Verwaltungsgerichtsordnung – VwGO) remains formally unaffected, yet affected persons will only be able to obtain legal protection through this avenue in exceptional cases, given that they are not aware of the surveillance measures. In this respect, too, extensive independent oversight is required as
compensation and in order to uphold the principle of proportionality (see para. 272 et
270
70/87