to eliminate international terrorism, Report of the Working Group of 3 November
2010, UN Doc. A/C.6/65/L.10) and – in conformity with the notions of the constitutionamending legislature upon the creation of Art. 73 sec. 1 no. 9a GG (cf. Bundestag
document, Bundestagsdrucksache – BTDrucks 16/813, p. 12), limited to specifically
characterised criminal offences of particular weight. Criminal offences characterised
as terrorism in this sense aim to destabilise society and comprise, in a reckless instrumentalisation of other people, attacks on the life and limb of random third parties.
They are directed against the basic pillars of the constitutional order and of society
as a whole. The provision of effective means of gathering information for protecting
against terrorism constitutes a legitimate aim and is of great significance for a democratic and free basic order (cf. BVerfGE 115, 320 <357 and 358>; 120, 274 <319>;
133, 277 <333 and 334 para. 133>).
b) The granting of the surveillance and investigative powers in question is suitable
for achieving this aim. They provide the Federal Criminal Police Office with the means
for gathering information that can play a role in countering the threat of international
terrorism. The different powers are, at least in principle, necessary for this. Each power allows specific measures that cannot always be replaced by others. Less intrusive
measures that provide equally effective and broad possibilities for gathering information for protecting against international terrorism are not apparent. Evidently, this
does not affect the fact that in each individual case, the exercise of these powers, too,
must be in accordance with the concepts of suitability and necessity.
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III.
Limitations result mainly from the requirements of proportionality in the strict sense.
Accordingly, the surveillance and investigative powers must be appropriately designed with a view to the weight of the interference. It is the legislature’s task to balance the seriousness of the interferences with fundamental rights of the potentially affected persons that are at issue here, on the one hand, with the duty of the state to
protect the fundamental rights of its citizens, on the other.
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1. The legislature must thereby take into account, on the one hand, the weight of the
interference of the measures allowed by the challenged provisions. These allow – to
differing degrees, depending on the power – far-reaching interferences with privacy
and can, in individual cases, even intrude upon private refuges the protection of
which is of particular significance for the safeguarding of human dignity. The legislature must also consider the developments of information technology which increasingly extend the scope of surveillance measures, facilitate their operability, and enable making connections, which can go so far as to create personality profiles. In
each case, differentiations must be based on the respective power in question as well
as the fundamental rights it affects.
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2. On the other hand, the legislature must ensure the effective protection of the fundamental rights and legal interests of citizens. With regard to the constitutional appropriateness test, it must be taken into account that the constitutional order, the exis-
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