BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht
30.07.20, 16:19
which exclusively domestic German telecommunications have been
eliminated up to and including the examination of the hits generated
with the ordered search concepts on account of their relevance to intelligence. By means of the regulatory content thus described, the provision takes account of legal requirements established by the Federal Constitutional Court in its judgment on the strategic surveillance of telecommunications of 1999 concerning the notification requirement contained in section 3 (8) G 10 (old version).
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In accordance with these standards, it corresponds in principle both
to the necessity to effectively protect the basic right deriving from article 10 GG and a requirement deriving from the guarantee of legal protection of article 19 (4) first sentence GG that persons affected by secret telecommunications monitoring measures are subsequently informed of them since without such notification, unless they have learned
of the collection of the telecommunications in some other way, they
are unable to assert either the unlawfulness of the encroachments on
their telecommunications privacy or any rights to deletion or notification. Statutory restrictions on the notification obligation are not ruled out under article 10 (2) first sentence GG and in implementation of
article 19 (4) first sentence GG, however. In view of the volume of
screenings and the fact that, to a large extent, the material obtained
proves to be irrelevant and is immediately destroyed, it may be justified to forego notification if the collected data have been destroyed immediately as irrelevant without any further steps being taken (BVerfG,
judgment of 14 July 1999 – 1 BvR 2226/94 et al.- BVerfGE 100, 313
<361, 364, 397 et seqq.>; affirming the result of the assessment according to the standard of article 8 ECHR: ECtHR, decision of 29 June
2006 - no. 54934/00, Weber and Saravia v. Germany – para. 135 et
seqq.). Although the Federal Constitutional Court accordingly demands destruction of data without any further steps, it refers to the destruction of irrelevant data, thus requiring a prior examination of relevance. Only when the data collected are further utilised, placing a heavier burden on the persons affected, does it consider the required legal
boundary for waiving notification to have been reached.
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The Federal Constitutional Court reinforced these standards for the
admissibility of restricting the notification obligation in a later ruling
on the unnoticed collection and processing of telecommunications
data. In this connection, there could be a large number of persons
whose data has been collected only coincidentally together with other
data and who would not themselves have been the focus of official action. In relation to such persons, cognisance of data for a short period
did not have to result in traces being left or consequences for the persons affected. For this reason, with regard to the deepening of the encroachment upon a basic right that would be caused by notification in
an individual case, such notification could in principle be waived even
without judicial confirmation when the persons concerned were affected only insignificantly by the measure and it was to be assumed that
they would have no interest in such notification (BVerfG, judgment of
https://www.bverwg.de/en/141216U6A9.14.0
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