BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht
30.07.20, 16:19
2 March 2010 – 1 BvR 256/08 et al. – BVerfGE 125, 260 <337>, decision of 12 October 2011 –2 BvR 236/08 et al. – BVerfGE 129, 208
<251>).
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The legislator could regard these conditions as having been fulfilled
in accordance with the generalising point of view, the required basis
for the case constellations under discussion here. In the case of the
strategic surveillance of telecommunications under section 5 G 10,
telecommunications are not only collected coincidentally in a strict
sense, since the restriction measures specifically have the objective of
filtering out a small amount of information from a very large number
of collected communications. The restrictions are not targeted at individuals, however – apart from the monitoring of foreign telecommunications connections under section 5 (2) third sentence G 10, which is
irrelevant to the decision in this case. Their character relates not primarily to persons but to facts (BVerwG, judgment of 23 January 2008
– 6 A 1.07 – BVerwGE 130, 180 para. 27). In the examinations of the
collected telecommunications traffic immediately carried out for its relevance from the point of view of intelligence in the form of automatic
comparison with the ordered search concepts followed by a check by
Federal Intelligence Service staff, the persons affected remain to a certain extent hidden in the background. To enable them to be informed
of the restrictions imposed, they would have to be put in the spotlight
of a closer examination that could not be restricted to individual cases,
which would in no way be occasioned by the objective of strategic surveillance. This would require large amounts of data, which could
otherwise be deleted immediately, to be stored for considerable periods. All this would considerably intensify the encroachment of the basic rights of an incalculable number of people; at the stage of the examination of relevance, these encroachments are of only low intensity.
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Under section 6 (1) sixth sentence G 10, data is not deleted except in
cases of the initial examination of relevance within the meaning of section 6 (1) first sentence G 10, insofar as the data could be of significance for notification under section 12 (2) G 10 or for a judicial review of
the legitimacy of the restriction measures. The statutory exemption
from the obligation that otherwise exists to delete data that are no longer required, in this provision and required in view of the guarantee of
legal protection under article 19 (4) first sentence GG, begins where
the notification obligation takes effect under sec-tion 12 (2) in conjunction with subsection 1 G 10 - which, as a rule, makes legal protection possible in the first place - namely in retaining collected data beyond the period of an immediate examination of their relevance. There
is just as little to criticise in the context of article 19 (4) first sentence
GG that the stages of an encroachment upon article 10 GG before the
time stated are not subject to a notification obligation as there are concerns on grounds of the constitutional protection of rights that the corresponding data are deleted immediately. While notification of restriction measures gives persons affected the knowledge they require to
claim judicial redress, the retention of data provides the evidence for a
judicial examination. On the other hand, the legislator, insofar as it is
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