highly confidential. The mere prognosis, however, that highly confidential and everyday matters will be combined in a conversation is not sufficient (cf. BVerfGE 109, 279
<330>, see above, C IV 3 a, d).
If, considering the above, there is a probability that a surveillance measure will interfere with the core area of private life, the measure may not be carried out. If – also
taking into account rules of presumption – there are no indications that there will be
an intrusion into the core area of private life, the measures may be carried out. However, should highly confidential situations nevertheless be recorded, the measures
must be discontinued immediately (cf. BVerfGE 109, 279 <320, 323 and 324>). If
there are doubts – for linguistic reasons, for example – as to the highly confidential
nature of a situation, or specific reasons to believe that together with the exchange of
highly private thoughts criminal offences are also being discussed, then the surveillance may be continued in the form of automatic recording.
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(2) Specific constitutional requirements also arise at the level of data analysis and
data use. It must be provided that the results of the surveillance will be screened by
an independent body. This screening serves both as a review of legality as well as a
filtering out of highly confidential data, so that – as far as possible – it is not disclosed
to the security authorities. The independent body is to be provided with all the data resulting from the surveillance of private homes (cf. BVerfGE 109, 279 <333 and 334>;
differently Chamber Decisions of the Federal Constitutional Court – Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 11, 164 <178>).
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In the case that, despite all safeguards, information relevant to the core area is collected, both a prohibition of its use, as well as a deletion requirement, including the
documentation of the deletion, must be put in place (see above, C IV 3 c bb, d, 7).
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bb) On this basis, § 20h sec. 5 BKAG satisfies the constitutional requirements at the
data collection level, but not at the level of its use.
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(1) For the surveillance of private homes, § 20h sec. 5 sentences 1, 2, 3 and 5 BKAG requires an examination of whether information from the core area will be collected. By allowing surveillance only under the presumption, based on a prognosis, that
any expression that is to be attributed to the core area of private life may not be collected and that the measures will be stopped if, contrary to the prognosis, the surveillance of private homes provides reasons to believe that highly private information is
being collected, the provision satisfies constitutional requirements. This also applies
to the authorisation to record automatically pursuant to sentence 3, which does not
set aside the legality requirements of sentence 1, but rather ties in with the interruption of monitoring and observation of individual persons required by sentence 2.
Where § 20h sec. 5 sentence 1 BKAG protects “expressions” relevant to the core
area, this also includes, when construed appropriately, visual recordings of equivalent situations.
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(2) At the level of data use, however, the approach with regard to the protection of
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