tional law (see above, C IV 2) – that the order for telecommunications surveillance
informs of the grounds for this measure. This cannot be overcome by means of an
interpretation in conformity with the Constitution. In light of the fact that the Act expressly sets out obligations to provide explanatory statements in other provisions (cf.
§ 20g sec. 3 sentence 6, § 20h sec. 4, § 20k sec. 6 BKAG), an interpretation here in
the sense that the absence of a rule requiring that the reasons be communicated is
based on an intentional decision to that end cannot be ruled out with sufficient certainty.
e) The provisions on the protection of the core area of private life pursuant to § 20l
Abs. 6 BKAG are for the most part compatible with the Constitution.
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aa) Telecommunications surveillance constitutes a serious interference that is in
particularly close proximity to the core area. As a form of content-related surveillance
of all kinds of telecommunications-based exchanges, it typically entails the risk of also collecting highly private communication that is subject to the protection of the core
area of private life. Insofar, special legislative protective precautions are needed (cf.
BVerfGE 113, 348 <390 and 391>; 129, 208 <245>).
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However, telecommunications surveillance is, considering its overall character, not
defined by an intrusion into privacy to the same extent as the surveillance of private
homes or remote searches might be (cf. BVerfGE 113, 348 <391>). It covers any kind
of communication in any situation, as long as it is transmitted by technical means.
Highly confidential communication is indeed one small component that is under threat
of being covered by the surveillance measures, too; however, it is not – unlike in the
case of the surveillance of a person’s private refuge in a private home – a distinctive
feature. In that respect, it is also different from remote searches. […] Its proximity to
the core area of private life lies mainly in the fact that it also covers highly personal
communication between highly trusted persons (cf. BVerfGE 129, 208 <247>).
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The legislature can take this into account by stipulating less stringent requirements
for the protection of the core area. However, this too requires an assessment – to be
taken at the collection stage – as to whether it is likely that highly private conversations will be covered, the surveillance of which must thus be prohibited if necessary.
Provided such conversations cannot be identified with sufficient probability, the surveillance measure may be carried out – and, in accordance with a proportionality test,
also by means of automatic on-going surveillance in the individual case (cf. BVerfGE
113, 348 <391 and 392>; 129, 208 <245>).
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As far as the protection of the core area at a subsequent level is concerned, prohibitions regarding the use of inadmissible evidence and data deletion requirements, including documentation requirements to this effect, must be provided for, while
screening by an independent body is not always necessary (cf. BVerfGE 129, 208
<249>). Regarding telecommunications surveillance, the legislature can in fact determine that such screening is conditional upon whether and to what extent it is likely
that the surveillance measure will also encompass highly private information. In that
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