BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht
30.07.20, 16:19
dent in the jurisprudence of the Federal Constitutional Court with regard to the definition of encroachments on the basic right to informational self-determination in the collection and screening of data to obtain information laid down in article 2 (1) GG in conjunction with article 1 (1) GG (for example: BVerfG, decision of 4 April 2006 – 1 BvR
518/02 – BVerfGE 115, 320 <343 et seq.>, judgment of 11 March 2008
– 1 BvR 2074/05 et al. – BVerfGE 120, 378 <398 et seq.> cf.: BVerwG,
judgment of 22 October 2014 – 6 C 7.13 - (…)).
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3. It is undisputed by the parties that among the total number of 288
telecommunications that the Federal Intelligence Service, in the context of its restrictions under section 5 (1) third sentence nos. 2, 3 and 7
G 10, collected, categorised as being of relevance from the point of
view of intelligence and demonstrably continued to store in 2012, there was no e-mail traffic of the claimant. To this extent, the Federal Intelligence Service did not encroach upon the claimant’s basic right deriving from article 10 GG, so that in this respect, a legal relationship
within the meaning of section 43 (1) VwGO did not come into
existence.
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Moreover, such an encroachment effecting a legal relationship would
not – yet – have occurred if an act of e-mail traffic by the claimant had
been among the exclusively domestic telecommunications which were
automatically eliminated without a trace and immediately deleted
right at the beginning of the screening process used by the Federal Intelligence Service in its strategic surveillance of telecommunications
i.e. immediately after the supply of the copied flow of raw data from a
transmission route covered by the order of a restriction measure.
Collection of this kind, which is solely for technical reasons and is
promptly neutralised, does not have the character of an encroachment
upon telecommunications privacy, as specifically stated by the Federal
Constitutional Court.
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In contrast, it cannot be ruled out firstly that an act of e-mail traffic of
the claimant was in the data flow collected by the Federal Intelligence
Service, from which exclusively domestic German telecommunications
had been re-moved, which was automatically searched on the basis of
the ordered search concepts without qualifying in this search as a socalled hit. Secondly, it cannot be ruled out that in the automatic processing of the search concepts, an act of e-mail traffic of the claimant
qualified as a hit, but proved to be irrelevant from an intelligence point
of view when immediately examined by staff of the Federal Intelligence Service under section 6 (1) first sentence G 10. In both these cases, the e-mail traffic subject to an encroachment upon the claimant’s
basic right deriving from article 10 GG would have been eliminated at
once by the Federal Intelligence Service and immediately and completely deleted, as happened to all e-mails that were irrelevant from an
intelligence point of view.
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This deletion would have been done in a lawful manner. From the basic right as provided for by article 10 GG and the principle of proportionality derives the requirement – which is also statutorily laid down
https://www.bverwg.de/en/141216U6A9.14.0
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