Body serves a separate purpose that is not limited to ensuring adherence to the law
and respect for fundamental rights. It is a manifestation of general parliamentary responsibility for the proper and politically adequate performance of tasks by the executive ([…]). Requirements regarding its design cannot be derived from the fundamental
rights invoked in the present proceedings; parliamentary powers vis-à-vis the executive that are derived from the Constitution remain unaffected by the requirements set
out above (cf. in this respect BVerfGE 143, 101).
VI.
Based on the requirements set out above, the challenged provisions also do not
satisfy the constitutional requirements in substantive terms. As with the violation of
the requirement to expressly specify affected fundamental rights (see paras. 134 and
135 above), the provisions are based on the assumption, which is incorrect from a
constitutional law perspective, that fundamental rights are not applicable to the surveillance powers in question. Given that the provisions are unconstitutional for formal
reasons alone, the substantive review will only address their key shortcomings. A
new legal framework for the Federal Intelligence Service’s powers will have to accommodate the fundamental rights of the persons whose telecommunications are under surveillance and will thus have to adhere to the requirements set out above.
301
1. The provisions on data collection and processing in §§ 6 and 7 BNDG are incompatible with Art. 10(1) GG and the proportionality requirements arising from it.
302
a) Firstly, this applies to strategic surveillance carried out from within Germany pursuant to § 6 BNDG.
303
aa) § 6 BNDG already fails to satisfy the constitutional requirements in respect of
interferences with fundamental rights of Germans and persons within Germany which
result from foreign surveillance and cannot be avoided for technical reasons. In particular, it does not sufficiently set out that filtering is necessary and the requirements
such filtering must satisfy (see para. 170 et seq. above). The substantive prohibition
in § 6(4) BNDG alone, which is misleading in implying that the collection of data concerning German citizens and persons within Germany could be avoided entirely, does
not satisfy these requirements. Moreover, there are no clear statutory provisions on
the required immediate deletion of domestic communications that were intercepted
unintentionally. While § 10(4) first sentence BNDG does provide for such deletion in
principle, it cannot be inferred from § 10(4) second to sixth sentence BNDG whether
and to what extent the Federal Intelligence Service can refrain from deleting such
communications (cf. Hölscheidt, Jura 2017, p. 148 <156>).
304
bb) Furthermore, the surveillance measures conducted pursuant to § 6 BNDG are
not limited to precisely defined and weighty purposes (see paras. 175 and 176
above). The broad and openly worded purposes listed in § 6(1) first sentence BNDG,
which, according to the explanatory memorandum to the draft act, are not intended
to narrow down the Federal Intelligence Service’s tasks in any way (cf. BTDrucks 18/
305
78/87