the core area does not satisfy the constitutional requirements in every respect. The
Act provides for a screening of the recordings by a court, yet it limits this screening to
automatic recordings in respect of which doubts have arisen (§ 20h sec. 5 sentence
4 BKAG). Insofar, the legislature is clearly guided by the consideration that further
independent screening is not necessary, because the collection of highly personal information is ruled out at the collection level by § 20h sec. 5 sentences 1 and 2 when
the Act is properly applied. This does not, however, justify such a limit to the independent screening of recordings from the surveillance of private homes. For the aim
of such screening is not solely filtering cases of doubt but also to guarantee an independent review with regard to the requirements that serve to protect the core area in
general. The courts’ only limited power to review pursuant to § 20h sec. 5 sentence
4 BKAG, however, does not guarantee this.. Indeed, the Basic Law gives the legislature sufficient leeway to provide for special rules applicable exceptional cases in case
of immediate danger when designing the review powers.
In accordance with the constitutional requirements, for highly personal data that is
nevertheless collected, the legislature has indeed provided for a prohibition of use
and its immediate deletion, as well as a documentation of the deletion. What is unconstitutional, however, is the very short period of time in § 20h sec. 5 sentence 10
BKAG during which the deletion logs are to be deleted. This period is so brief that during the storage period of the deletion logs typically neither a review by the Federal
Data Protection Commissioner nor by the party concerned is likely to occur and the
documentation of the deletion thus becomes meaningless (cf. Bäcker, loc. cit., p. 88;
cf. in this respect also BVerfGE 100, 313 <400>; 109, 279 <332 and 333>). Since the
deletion logs themselves do not contain any data that might incriminate the person
concerned, this brief period in particular cannot be justified on the grounds that it
serves to protect this person.
205
3. The conditions set out for electronic profile searching pursuant to § 20j BKAG are
constitutionally unobjectionable.
206
The provision provides the basis for an interference with the right to informational
self-determination. Yet the conditions for interference are sufficiently specific and proportionate in their design, so that the interference is justified. In particular, electronic
profile searching is permitted for the protection of sufficiently weighty legal interests
(see above, C V 1 c aa) and requires a specific threat pursuant to § 20j sec. 1 sentence 1 in conjunction with § 20a sec. 2 BKAG. There can be no constitutional objection either to the example in the second half of § 20j sec. 1 sentence 1 BKAG, in
which the legislature specifies the required risk situation exemplarily. The relevant requirements (cf. BVerfGE 115, 320 <363 et seq.>) remain unaffected by this. The provision is also proportionately designed in procedural respects; in particular, it requires
a judicial order.
207
4. § 20k BKAG, if interpreted in conformity with the Constitution, is constitutional
with regard to the general conditions for interference. However, the rules with regard
208
33/71