seq. below).
b) Where the law does not provide for notification requirements, Art. 10(2) second
sentence GG may have to be observed. However, this provision does not give rise to
strict constitutional requirements regarding the structure of the oversight regime that
must be created to compensate [for the absence of notification requirements]. Its
scope of application is narrowly restricted by its elements of “the protection of the free
democratic basic order” and “the existence or security of the Federation or of a Land”
(cf. BVerfGE 100, 313 <397 and 398>). Even where the requirements of Art. 10(2)
second sentence GG are met, no detailed instructions for the structure of oversight
follow from its reference to agencies and auxiliary agencies appointed by the legislature. It only lays down that the oversight body exercising review must be created by
Parliament, which must also determine its members – in consideration of the different
political groups represented in Parliament. The oversight body can be either a parliamentary body or a body not connected to Parliament (cf. BVerfGE 30, 1 <23>; 143, 1
<12 para. 39>). Thus, the body does not necessarily have to be made up of members
of the Bundestag. Nor does the provision preclude organisational independence of
the body, including strict confidentiality vis-à-vis Parliament as well (regarding accountability of the Federal Intelligence Service to Parliament, which follows separate
principles and is not at issue in the present proceedings, cf. BVerfGE 143, 101 <133
et seq. para. 106 et seq.>). The body can also be an independent institution within
the executive branch (cf. BVerfGE 30, 1 <28>; 143, 1 <12 para. 39>; see para. 274
et seq. below for more detail on the requirements and possibilities for the design of
such a body).
271
3. Strategic telecommunications surveillance is only compatible with the proportionality requirements if it is complemented by extensive independent oversight that
serves to ensure that the law is observed. This concerns, on the one hand, strategic
surveillance and the related data use, as well as, on the other, the sharing of intelligence thus obtained and the cooperation with foreign intelligence services. Such
oversight must be designed as continual legal oversight that allows for comprehensive access to conduct oversight of the surveillance process. It must be aimed at upholding the fundamental rights of affected persons. Moreover, it must serve to guarantee adherence to the legal limits of state surveillance measures and to ensure the
practical effectiveness of these limits.
272
a) In relation to strategic surveillance, the constitutional requirements regarding the
design of the oversight regime are particularly strict and detailed. This is because
oversight must compensate for the virtual absence of safeguards commonly guaranteed under the rule of law. Oversight thus serves two functions. Firstly, it must compensate for the gap in legal protection that follows from the factually weak possibilities for individual legal protection. Given that very limited information and notification
requirements apply to the surveillance of foreign telecommunications in light of its
need for secrecy, effective legal protection can hardly be obtained; this must be compensated by oversight exercised by an independent body. Secondly, to compensate
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