requires special oversight, particularly with foreign bodies; and the requirements for
cooperation that is aimed at the automated sharing of traffic data with foreign intelligence services for retention and analysis. Furthermore, oversight resembling judicial review is required with regard to the exceptional use of data based on particular
situations of danger, even though this data stems from telecommunications in which
Germans or persons within Germany were involved (insofar as this was only noticed
during manual screening), or the data stems from surveillance measures not based
on the purpose of early detection of dangers, but only on the purpose of providing political intelligence to the Federal Government. The legislator has latitude to determine
whether such oversight is to be exercised ex ante or ex post and whether only random samples are screened – possibly in interaction with the administrative oversight
body – in the case of ex post oversight. Nevertheless, the legislator is bound by the
principle of proportionality – as, in part, becomes clear from the further requirements
set out above –, which requires ex ante oversight at least for fundamental decisions.
bb) It must be guaranteed that the entire process of strategic surveillance, including
the processing and sharing of data based on it and the cooperation with foreign intelligence services, can comprehensively be subjected to oversight when the oversight
bodies interact. In cases in relation to which no oversight resembling judicial review
is provided for, administrative oversight must be possible. Yet only oversight as to the
objective legality of the measures in question is required. It does not concern a decision on whether, within the legal framework, the powers are exercised adequately in
practice.
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cc) With regard to oversight resembling judicial review, the legislator must also assess whether persons who can plausibly demonstrate that they may have been affected by surveillance measures can be granted the right to initiate such oversight
measures. Within the framework of the oversight regime in question here, which does
not give effect to the constitutional guarantee of legal protection and has no bearing
on the possibility of having formal recourse to the courts pursuant to §§ 40 and 50(1)
no. 4 VwGO, the Constitution does not preclude the design of oversight as a procedure that at least partially excludes affected persons and the public (in camera). This
applies at least where the exclusion of affected persons and the public is necessary
to allow for oversight which would otherwise not be possible at all and would therefore not be required under constitutional law (regarding such complaint proceedings
under the law of the United Kingdom cf. Leigh, in: Dietrich/Sule [eds.], Intelligence
Law and Policies in Europe, 2019, p. 553 <575 et seq.>; see also the considerations
on whether applicants are to be considered victims and on the availability of domestic
legal remedies in ECtHR, Big Brother Watch and Others v. the United Kingdom,
Judgment of 13 September 2018, no. 58170/13 and others, §§ 249 et seq.).
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d) It must be guaranteed that oversight can be exercised continually and is institutionally independent. This includes that the oversight bodies must have a separate
budget and independent management of their personnel, except where the appointment of the members of the panel resembling a court and the directors of the over-
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