1. It is not objectionable, however, that the Act does not contain an express rule that
specifies in detail the prohibition of comprehensive surveillance with a view to the interplay of the different powers (see above, C IV 4). Stemming from the principle of
proportionality, the prohibition of comprehensive surveillance serves the purpose of
safeguarding, for constitutional reasons, the inalienable core of personality that is
rooted in human dignity; within their powers, security authorities must observe this
prohibition upon their own initiative (cf. BVerfGE 109, 279 <323>; 112, 304 <319>;
130, 1 <24>; established case-law). Insofar, further statutory specifications are not required. […]
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2. However, the degree of protection of professional groups and other groups of persons whose activities require, for constitutional reasons, that their communication be
treated as particularly confidential is not viably designed in all respects.
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a) Yet with § 20u BKAG, the legislature has created a provision that largely meets
the relevant constitutional requirements. In particular it is not objectionable that § 20u
sec. 2 BKAG – drafted closely in line with § 160a StPO – does not strictly rule out the
surveillance of persons subject to professional confidentiality but rather rules out such
surveillance only subject to a weighing of considerations in the individual case, and
requires in § 20u sec. 1 BKAG a stricter prohibition of surveillance only with a view to
a small group of persons whom the legislature has identified as being in particular
need of protection (cf. BVerfGE 129, 208 <258 et seq.>). The weighing of considerations required under § 20u sec. 2 BKAG needs to give appropriate weight to the affected persons’ fundamental rights. The weighing is structured in line with the principle of proportionality. In accordance with the second half of § 160a sec. 2 sentence 1
StPO, the Constitution sets down the presumption that the interests of the Federal
Criminal Police Office in collecting data generally will not prevail if the measure does
not aim to provide protection against a significant danger.
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b) In that respect, however, the level of protection afforded to the relationship of trust
between lawyers and their clients is not compatible with the Constitution. The legislative distinction between defence counsel and other lawyers acting within a lawyerclient relationship does not as such constitute a suitable criterion for differentiating
the respective protection level, given that the surveillance measures in question do
not pursue the aim of prosecuting criminal offences but of protecting against threats,
meaning that criminal defence is in fact not of any relevance here.
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c) Beyond that, however, violations of fundamental rights resulting from § 20u BKAG
are not discernible. In particular, Art. 5 sec. 1 sentence 2 GG does not result in media
representatives being entitled to claim stricter protection (cf. BVerfGE 107, 299 <332
and 333.>). Further limits do not stem from Art. 3 sec. 1 GG either. The legislature is
permitted to understand the recognition of stricter protection against surveillance
measures as an exception for specific situations requiring protection and with regard
to which the legislature’s discretion is broad. In a judgment of 12 October 2011, the
Second Senate ruled that the recognition that clergy or political representatives are in
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