for example, also in terms of the corresponding powers under the Police Acts of the
Laender –, the proportionality requirements are met at any rate in the case at hand.
In contrast, the reference in § 20g sec. 1 no. 1 BKAG to the legal definition of
“threat” in § 20a sec. 2 BKAG cannot be understood to mean that § 20a sec. 2 BKAG
overrides the limitation of the legal interests in § 20g sec. 1 no. 1 BKAG and assumes
that any threat to public security arising in the context of criminal offences pursuant to
§ 4a sec. 1 sentence 2 BKAG is sufficient. § 20a sec. 2 BKAG does indeed specify
the term “threat”, as applying to all powers listed thereafter, and by highlighting the requirement that it must arise in an individual case. Yet, under a reasonable and constitutionally required interpretation, the function of this provision is not to override the
specifically limited requirements pertaining to the protection of legal interests as they
apply to individual powers.
157
bb) § 20g sec. 1 no. 1 BKAG also requires sufficiently specified grounds for ordering
the measures. The provision requires the presence of a threat. Pursuant to § 20g sec.
2 BKAG this is to be understood as an “existing threat in an individual case” and thus
as “a specific threat” within the meaning of general security law. In light of the regular
courts’ jurisprudence shaping this term, there are no grounds for objections on the
basis of specificity or proportionality considerations.
158
cc) Furthermore, there are no constitutional objections to the fact that § 20g sec. 1
no. 1 BKAG determines the persons addressed by the measures by reference to
§§ 17, 18 and 20 of the Act on the Federal Police (Bundespolizeigesetz – BPolG) and
thus to principles of responsibility under police laws. The legislature is permitted to resort to the institutions of general security law. […] With regard to the powers of § 20g
secs. 1 and 2 BKAG in question here, which neither interfere with Art. 10 sec. 1 GG,
nor with the right to the guarantee of the confidentiality and integrity of information
technology systems, nor with Art. 13 sec. 1 GG, there is also no objection to be made
on the basis that surveillance pursuant to § 20 BPolG can also be ordered with regard
to a person from whom the threat does not emanate, under the same conditions required for state of necessity duties. The provisions to this effect are narrowly defined
and are to be interpreted strictly. […]
159
dd) The means of surveillance defined in § 20g sec. 2 BKAG are also not too unspecific or disproportionate. However, these powers also include – irrespective of the different weight of the individual interferences – particularly serious interferences, such
as the possibility of long-term audio and visual recording of private conversations and
situations, or the taking advantage of trust by undercover investigators and police informants. In order to protect against the particularly serious threats named in § 20g
sec. 1 no. 1 BKAG, though, these serious interferences may also – in accordance
with a test of proportionality carried out in the individual case – be constitutionally justified.
160
The technologically open definition of the means of surveillance of § 20g sec. 2 nos.
2 and 3 BKAG does not meet with any objections either. The legislature is not obligat-
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