aims (see paras. 178 et seq. and 253 above).
b) Insofar as § 14(1) BNDG provides a legal basis according to which data collected
by the Federal Intelligence Service may be analysed by means of search terms determined by foreign services, no sufficient obligations to check the search terms are
imposed [on the Federal Intelligence Service]. In particular, safeguards to protect persons meriting special protection and relationships of trust are lacking (see paras. 194
et seq. and 257 above). Apart from that, it is sufficient in substantive terms that
search terms may only concern the aims of cooperation, must afford protection from
targeted interception of persons in the European Union and be compatible with the
Federal Republic of Germany’s interests (cf. § 14(1) first and second sentence and §
14(2) BNDG). However, there are no procedural safeguards that sufficiently guarantee the existence of a statutory obligation to check whether search terms provided by
foreign services are permissible in substantive terms based on a minimum of information to be disclosed by the foreign services, and to subject random samples to
manual screening where necessary (see para. 254 et seq. above).
322
c) Automated data sharing pursuant to § 15(1) BNDG is also not subject to sufficiently strict provisions requiring the removal of data of persons who merit special
protection or data stemming from special relationships of trust (see paras. 194 et seq.
and 257 above). The law also does not require with sufficient legal clarity that the recipients provide assurances that they will respect relationships of trust and prohibitions of discrimination or adhere to basic thresholds for data sharing (see para. 260
above). The abstract and general assurance pursuant to § 13(3) no. 4 BNDG that
data will be used in line with the principles arising from the rule of law is not sufficient
in this respect. The law also does not provide for a sufficient ascertainment that the
recipient will use the data in accordance with the rule of law (see paras. 233 et seq.
and 261 above). Finally, the provision does not restrict the sharing of unfiltered traffic
data in any way (see para. 262 et seq. above)
323
4. Moreover, it is clearly evident that the Federal Intelligence Service Act does not
set out a sufficient legal framework for oversight of the aforementioned powers. The
very limited obligations to provide information that are set out in § 22 BNDG and the
lack of notification requirements vis-à-vis affected persons abroad in relation to the
surveillance of foreign communications are not objectionable in themselves. However, extensive independent oversight is required to compensate for the broad scope of
the provisions and the very limited possibilities of obtaining legal protection in practice – as set out above (see para. 267 et seq.). As the law currently stands, in view of
their powers and their organisational and institutional design, the Independent Body
and the Federal Data Protection Commissioner cannot ensure such oversight in the
constitutionally required form.
324
VII.
Insofar as the provisions authorise surveillance measures targeting journalists and
thus give rise to interferences with Art. 5(1) second sentence GG, they are also in83/87
325