decision-making powers, to which the essential procedural steps of strategic
telecommunications surveillance are subject, as well as administrative oversight, by means of
which the competent body can on its own initiative examine the legality of the entire process
of strategic telecommunications surveillance on the basis of random samples (BVerfG, loc.
cit., para. 272 et seq.). Institutionally independent oversight is to be guaranteed. This includes
having a separate budget, independent recruitment powers and procedural autonomy. The
oversight bodies are to be given the staff and resources they need to carry out their tasks
effectively (BVerfG, loc. cit., para. 282 et seq.). They must have all the powers necessary for
effective oversight of the Federal Intelligence Service, and that oversight must not be
obstructed by the ‘third-party rule’ (BVerfG, loc. cit., para. 292 et seq.)
In addition to the decision of the Federal Constitutional Court, the amendment also
implements the rulings contained in two decisions of the Federal Administrative Court of
13 December 2017 (BVerwG 6 A 6.19 and 6 A 7.16). In these proceedings the Federal
Administrative Court was asked to rule on two actions brought against the traffic data
analysis system used at that time by the Federal Intelligence Service (VERAS). Traffic data
on communications by German nationals, domestic legal entities or persons resident on
federal territory with other countries were stored in VERAS. However, before being stored
the data were anonymised by the Federal Intelligence Service, so that the source could no
longer be identified. The Federal Administrative Court viewed this as encroachment on the
protection afforded by Article 10(1) of the Basic Law, in spite of the anonymisation
undertaken prior to storage. Such interventions are thus permissible only if performed in
accordance with a specific legal basis. However, this was lacking when the Federal
Administrative Court handed down its ruling, both in the Federal Intelligence Service Act and
in the Article 10 Act, and is now being created.
The objective of this fundamental amendment of the existing legal basis of the Federal
Intelligence Service, in implementing the stipulations of the Federal Constitutional Court and
the Federal Administrative Court, is thus to provide a more legally certain and specific legal
basis for the work of the Federal Intelligence Service in the area of technical surveillance and
the further processing of the data collected in this way. Foreign surveillance using technical
resources which is effective and, at the same time, circumscribed by the rule of law is thus
also to be made possible in the future.
B.
Solution
The amendment of the Federal Intelligence Service Act leads to legally compliant
formulation of the requirements arising out of the decision of the Federal Constitutional
Court of 19 May 2020 (1 BvR 2835/17), implementing this decision and revising the Act in
substantive and systematic respects. In addition, the amendment serves to implement two
decisions of the Federal Administrative Court of 13 December 2017 (BVerwG 6 A 6.16 and
6 A 7.16).
C.
None.
Alternative