In order to respond to these rulings of the Federal Constitutional Court, the relevant norms of
the Federal Intelligence Service Act must be thoroughly revised. Account should be taken of
the vital role of effective foreign surveillance and, consequently, of the Federal Intelligence
Service in the security architecture of the Federal Republic of Germany.
In its decision of 19 May 2020, the Federal Constitutional Court emphasises the paramount
public interest in effective foreign surveillance (BVerfG 1 BvR 2835/17, para. 161). The
provision of information to the Federal Government for its foreign and security policy
decisions helps it to maintain its position in the power politics of international relations, and
incorrect decisions with serious consequences can be averted (BVerfG, loc. cit., para. 162).
On that basis, the Federal Constitutional Court takes the view that the issue is one of
maintaining democratic self-determination while protecting the constitutional order; in other
words, significant constitutional principles are involved. There is, therefore, a whole-state
interest at stake which extends clearly beyond the importance of guaranteeing internal
security as such (BVerfG, loc. cit., para. 162).
The Federal Constitutional Court also emphasises that threats from abroad have increased
substantially in the wake of the development of information technology and international
communications, and the greater ease of interaction between individuals across borders this
has brought about. The early detection of threats from abroad is also, in the estimation of the
Federal Constitutional Court, gaining particular significance for security. The expansion and
internationalisation of communications options and the resulting increased politicisation and
organisational capabilities of international criminal groups has given rise to dangerous
situations in individual countries, often as a result of the activities of networks of actors
cooperating internationally, which can quickly take on a foreign and security policy
dimension. Such activities are partially aimed at destabilising society, and can pose a threat to
the constitutional order, the continued existence and security of the federation or the Länder,
and to life, limb and freedom. These are vitally important constitutional principles, and to
protect them the legislator can regard foreign surveillance that is effective and, at the same
time, circumscribed by the rule of law, as essential (BVerfG, loc. cit., para. 163).
The Federal Constitutional Court emphasises, further, that the far broader access to data
granted to strategic surveillance authorities today must be seen in the context of the increase
in security risks since the Federal Constitutional Court handed down its ruling in 1999.
Above all, however, the Federal Constitutional Court emphasises that an important factor
justifying strategic telecommunications surveillance is that the consequences are mitigated to
some extent by its being undertaken by an authority which itself, in principle, does not have
any operational powers (BVerfG, loc. cit., para. 164f.). As the data are collected by an
authority which does not have operational powers of its own, further use of the data is
initially conditional on independent screening. It is, therefore, only transfer of the data for
operational use that must be secured by means of appropriate transfer thresholds (BVerfG,
loc.cit., para. 165).
The Federal Constitutional Court makes clear, at the same time, that the powers concerning
strategic surveillance, transfer of the data obtained and cooperation with foreign services in
this area are consistent with the requirements of proportionality only if they are accompanied
by independent oversight on the basis of objective law. This oversight is to be formulated as
continuous legal oversight, which makes comprehensive oversight access possible. The
Federal Constitutional Court demands, for this purpose, quasi-judicial oversight with final