The constitutionally required screening by an independent body serves not only as a
review of legality, but also significantly as a way of filtering out data relevant to the
core area of private life so that, where possible, it remains undisclosed to the security
authorities. This presupposes that the review is largely conducted by external persons not charged with security tasks. This does not rule out the involvement of an employee of the Federal Criminal Police Office – subject to a separate duty of confidentiality – in order to ensure expertise in a specific investigative matter. Moreover, in a
similar manner, the Federal Criminal Police Office can offer technical support - including, for example, for language mediation purposes - for the screening. Yet the actual
carrying out and decision-making responsibility must remain in the hands of persons
who are independent with regard to the Federal Criminal Police Office.
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This is not ensured by the current statutory approach. It largely entrusts the Federal
Criminal Police Office itself with the screening. The fact that one of the employees,
such as the Federal Data Protection Commissioner within this specific public authority, is not subject to instruction does not mitigate this issue; nor does subjecting the
screening to the general “expert oversight” of the ordering court.
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By contrast, § 20k sec. 7 sentences 5 to 7 BKAG ensures further safeguards at the
level of use for an effective protection of the core area in a constitutionally sound
manner. What is unconstitutional here too, however, is the very short period of time in
§ 20k sec. 7 sentence 8 BKAG, during which the deletion logs must be retained (see
above, C IV 3 d).
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5. § 20l BKAG is only partially compatible with the Constitution.
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a) § 20l BKAG governs telecommunications surveillance and thus provides a basis
for interferences with Art. 10 sec. 1 GG. In that respect, Art. 10 sec. 1 GG is not only
the relevant standard with regard to § 20l sec. 1 BKAG, which governs the conventional surveillance of telecommunications, but also with regard to § 20l sec. 2 BKAG,
which allows telecommunications surveillance at the source insofar as technical measures ensure that the surveillance only covers on-going telecommunications. While
this technically requires having access to the respective information technology system, § 20l sec. 2 BKAG only allows those surveillance measures that are limited to
on-going telecommunications processes. Thus, the purpose of the provision is merely
to track the technological developments in information technology and to allow – without accessing further content-related information provided by the information technology system – telecommunications surveillance also in those cases in which it is no
longer possible by means of the old surveillance technology. As a result, this measure must not be evaluated in the light of the fundamental right to the guarantee of the
confidentiality and integrity of information technology systems but rather with a view
to the standards set out in Art. 10 sec. 1 GG (cf. BVerfGE 120, 274 <309>).
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Telecommunications surveillance entails interferences that are serious (cf. BVerfGE
113, 348 <382>; 129, 208 <240>). However, they are justified for the purpose of protecting against threats from international terrorism (see above, C II 3 a) insofar as the
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