sec. 3 sentence 8 BKAG). This applies, on the one hand, with respect to the monitoring and recording of non-public speech and the use of police informants or undercover investigators (§ 20g sec. 2 nos. 2 b, 4 and 5 BKAG), as well as, on the other hand,
long-term observation (§ 20g sec. 2 no. 1 BKAG), which also includes those cases in
which it is carried out by means of visual recordings or the use of technical means
such as tracking devices (cf. § 20g sec. 2 nos. 2 a and 3 BKAG).
This provision only partially satisfies the constitutional requirements. It is, however,
not objectionable that image recording as well as merely short-term observations –
even using visual recording or technical means such as tracking devices – are not
subject to a judicial order. Should the surveillance measures remain limited in this
manner, then the weight of their interference is not so significant as to constitutionally
require a judicial order (cf. stricter with regard to observation by means of a GPS
tracker, Supreme Court of the United States, United States v. Jones, 132 S. Ct. 945
[2012]; on the surveillance of a suspect by means of GPS, more reserved on the other hand, ECtHR, Uzun v. Germany, judgment of 2 September 2010, no. 35623/05,
para. 70, NJW 2011, p. 1333 <1336 and 1337>, on Art. 8 ECHR). In contrast, an independent review is constitutionally indispensable if observations within the meaning
of § 20g sec. 3 no. 1 BKAG are to be carried out over a longer period of time – particularly when this involves visual recording or the use of particular technical means
such as tracking devices –, if non-public speech is to be monitored or if police informants are to be used. These measures constitute such a serious interference with
privacy that their ordering must be reserved for an independent body, such as a court.
In this respect, it is not sufficient to permit the security authority to initially order the
measures itself but to provide for the disciplinary effect of a judicial decision – possibly on the basis of the information thus obtained – only at the renewal stage. To the
extent that it is provided that the initial ordering of these measures may occur without
a judicial decision, the procedural design of § 20g BKAG is not proportionate.
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g) § 20g BKAG is also insufficient with regard to the constitutional requirements insofar as it does not provide for any protection of the core area of private life.
175
§ 20g BKAG authorises surveillance measures of varying quality and proximity to
privacy. By also permitting long-term visual recording and long-term monitoring and
recording of non-public speech, the provision authorises surveillance measures that
typically constitute a serious interference with privacy. These measures all involve
surveillance taking place outside of private homes. Yet this does not mean that – be it
in the car, be it sitting separately in a restaurant, be it secluded on a stroll – highly
confidential situations belonging to the core area of private life are not likely to be
recorded […].
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With regard to certain powers, the provision thus has a proximity to the core area
that makes an express legal provision for the protection of the core area of private life
necessary. The legislature must, in a clear manner, provide for protective provisions
both with regard to data collection as well as with regard to data analysis and use
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