respect, there is an interrelation with the precautionary measures taken at the data
collection level.
To that end, the legislature is given considerable leeway to design. […]
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bb) § 20l sec. 6 BKAG satisfies these requirements for the most part.
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(1) Substantively, § 20l sec. 6 sentence 1 BKAG stipulates that an assessment with
regard to the protection of the core area must be carried out before implementing
telecommunications surveillance measures and that such measures may not be taken if there are factual indications suggesting that the measure will only generate insights from the core area of private life. Given that this provision is also subject to a
constitutional understanding according to which conversations with highly trusted
persons are not already removed from the strict scope of protection if these conversations combine highly personal with everyday matters (cf. BVerfGE 109, 279 <330>),
this is not objectionable. In accordance with the Constitution, the Act also stipulates
that the measure be discontinued if the surveying persons gain direct knowledge of
highly confidential conversations; furthermore, if doubts arise, the Act limits the surveillance measure to automatic recordings, § 20l sec. 6 sentences 2 and 3 BKAG.
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However, beyond that, the Act also allows automatic recording measures in general,
i.e. even in those cases in which such measures might also encompass, in addition to
other conversations, conversations that are of relevance with regard to the core area
(cf. first half of § 20l sec. 6 sentence 2 BKAG). As far telecommunications surveillance is concerned, this is, nonetheless, still constitutionally acceptable. In that respect, the more stringent requirements applying to the surveillance of private homes
(cf. BVerfGE 109, 279 <324>), which are, given their nature, more closely linked to
the core area, are not applicable here. Nonetheless, an order to carry out such automatic recording is subject to a strict proportionality test assessing the measure’s temporal and factual scope in the individual case. Also, the fact that this provision accepts that measures might cover highly personal information requires effective
protective precautions at the level of the analysis and use of the data.
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(2) Also in this respect, the provision meets the constitutional requirements for the
most part. The provision not only provides for the required prohibitions regarding the
use of inadmissible evidence and data deletion requirements, but, regarding automatic recordings, also requires prior screening by a court. The fact that this review is limited to automatic recordings and thus to covering cases of doubt does not raise constitutional concerns. Unlike in case of the surveillance of private homes, the
independent screening of telecommunications surveillance may be limited to cases of
doubt.
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In contrast, however, the safekeeping period for the deletion protocols set out in §
20l sec. 6 sentence 10 BKAG is too short and thus unconstitutional (see above, C IV
3 d).
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6. Insofar as it corresponds to § 20l BKAG, § 20m secs. 1 and 3 BKAG suffers from
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