the same constitutional deficiencies and is itself also unconstitutional in this respect.
As for the rest, the provision is compatible with the Constitution.
a) § 20m secs. 1 and 3 BKAG, which allows the collection of telecommunications
traffic data, provides the basis for an interference with the right to secrecy of telecommunications under Art. 10 sec. 1 GG. This right protects not only the actual contents
of the communication but also the confidentiality of the specific circumstances of
communication events which include in particular whether, when and how often
telecommunications traffic occurred or was attempted between whom or between
which telecommunications equipment (cf. BVerfGE 67, 157 <172>; 130, 151 <179>;
established case-law).
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An interference with Art. 10 sec. 1 GG by means of the collection of telecommunications traffic data is serious – even if it does not directly cover the contents of the communication (cf. BVerfGE 107, 299 <318 et seq.>; regarding the precautionary storage
of such telecommunications traffic data cf. also BVerfGE 125, 260 <318 et seq.>).
However, if designed proportionately, it can be justified for the purpose of protecting
against terrorism. As with § 20l BKAG, this is, however, not the case in all respects.
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b) Regarding the constitutional appraisal of the provision, whose conditions for interference essentially correspond to those set out in § 20l secs. 1 and 3 to 5 BKAG, the
statements made in that context apply here accordingly. Given that the requirements
for investigative and surveillance measures constituting a serious interference, stemming from the overarching principle of proportionality, are not met in this respect (see
above, C IV 1 b, 2), the approach taken with regard to the collection of telecommunications traffic data does not differ from that applied in content-related surveillance of
telecommunications.
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Accordingly, § 20m sec. 1 no. 2 BKAG is not compatible with the Constitution, while
§ 20m sec. 1 nos. 3 and 4 BKAG requires an interpretation in conformity with the Constitution; a statutory obligation to substantiate the reasons underlying the order of the
measure is lacking, too (see above, C V 5 b, d).
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As for the rest, § 20m secs. 1 and 3 BKAG is compatible with the Constitution. […]
Also § 20m sec. 3 sentence 2 BKAG, which, in view of ordering measures, provides
for a facilitation of the description of the data to be collected, does not raise constitutional concerns; this does not have implications for the fact that § 20m sec. 1 BKAG
allows the collection of data only with regard to individual persons.
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VI.
In several respects, the challenged investigative and surveillance powers are not
compatible with the Constitution in terms of the further requirements that they too
must meet (see above, C IV 4 to 7). They lack supplementary provisions without
which the proportionality of the challenged investigative and surveillance powers is
not satisfied.
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