for the fact that surveillance powers are essentially only guided by the purpose pursued, oversight must ensure that the use of these powers adheres to the required
procedure. Oversight thus serves as a counterweight to the wide-ranging possibilities
for conducting surveillance that are granted to the Federal Intelligence Service and
ensures, in procedural terms, that these are adequately based on the statutory aims.
b) The legislator must provide for two different types of oversight, which must also
be reflected in the organisational framework.
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aa) Firstly, a body resembling a court must be tasked with conducting oversight.
This body must consist of panels with members who must be independent in a way
that is equivalent to judicial independence. They must decide in a formal procedure
and their decisions must be made in writing and are final and binding on the Federal
Government and the Federal Intelligence Service. This type of oversight must provide
the protection otherwise afforded through the requirement of prior judicial authorisation or through avenues for ex post legal protection, in particular declaratory actions.
Thus, it must allow for a review of the individual case which is equivalent to judicial
review both in substantive and in procedural terms and is at least as effective, too (cf.
BVerfGE 30, 1 <23> on Art. 10(2) second sentence GG).
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bb) Secondly, independent oversight must also be exercised by a body that is administrative in nature. In this respect, an oversight body must be created that can, on
its own initiative, randomly scrutinise the entire process of strategic surveillance as to
its lawfulness; this concerns individual decisions, processes, the design of data processing and filtering mechanisms as well as the technical resources used for them.
This oversight body does not have to be vested with final decision-making powers; it
is sufficient that the body be granted a right to object. To clarify fundamental questions of law, the body must have the option to refer such questions to the decisionmaking body that resembles a court (see para. 298 below regarding the necessary
option to raise concerns with Parliament or the public under certain circumstances).
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c) It is incumbent upon the legislator to set out how the competences of the different
types of oversight interact. It has considerable latitude in this area, but must adhere
to the requirements arising from the principle of proportionality.
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aa) The legislator must ensure that the key procedural steps of strategic surveillance and of data processing measures linked to it are, in principle, subject to oversight that resembles judicial review and is given the power to make final decisions. In
particular, as can be inferred from the substantive requirements set out above, such
oversight must examine the formal determination of the various surveillance measures, including in the area of cooperation; specific bulk warrants; the use of search
terms, insofar as these directly target individuals who may pose a danger and are
thus of direct interest to the Federal Intelligence Service; the use of search terms that
directly target individuals whose communications enjoy special confidentiality protection; the balancing decisions required to protect confidentiality in relationships of
trust; the handling of data that may belong to the core of private life; data sharing that
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