III.
Various rules within § 20v sec. 5 BKAG, which governs the transfer of data to other
authorities, do not satisfy the constitutional requirements.
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1. § 20v sec. 5 BKAG provides various legal bases for the transfer of data, collected
for the purpose of preventing terrorist threats, to other authorities. The relevant rules
constitute authorisations with which the legislature allows a change in purpose of the
use of data in individual cases and with regard to specific grounds. In that way, the
legislature allows the use of data by other authorities, which – in accordance with the
image of a double door – themselves must also be authorised to retrieve and use this
data (cf. BVerfGE 130, 151 <184>). Thus, the provision provides for interferences
with fundamental rights, each of which must be measured against those fundamental
rights that were interfered with by the collection of the transferred data (cf. BVerfGE
100, 313 <360, 391>; 109, 279 <375>; 110, 33 <68 and 69>; 125, 260 <312 and 313,
333>; 133, 277 <372 para. 225>; cf. also ECtHR, Weber and Saravia v. Germany,
judgment of 29 June 2006, no. 54934/00, § 79, NJW 2007, p. 1433 <1434>, on Art. 8
ECHR).
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2. § 20v sec. 5 BKAG does not violate the requirements of the principle of specificity. This also applies insofar as the provision comprehensively allows a transfer of data to “other public entities”. The specific understanding of this phrasing, i.e. identifying
which entities are meant, depends on the respective transfer purposes which further
specify the different transfer powers. It is thus possible to determine the potential addressees of a transfer with sufficient specificity on the basis of the competence provisions.
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3. Yet the transfer powers are unconstitutional insofar as their requirements fail to
satisfy the standards developed above with regard to the criterion of a hypothetical
re-collection of data (see above, D I 2 b).
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a) § 20v sec. 5 sentence 1 no. 1 BKAG, however, does not raise constitutional concerns. The transfer of data for the purpose of mutual understanding and coordination
does not itself implicate a change in purpose. It aims to coordinate the protection
against threats in a manner that § 4a sec. 2 BKAG always requires for the Federal
Criminal Police Office to exercise its functions, and is thus necessarily included in the
data collection provision. This also justifies the broadness of the provision that does
not provide restrictions to the transfer of data. Coordination is only provided for with
regard to measures that are based on a lawful use of data; for that reason, it need not
be feared that the purpose limitation of information stemming from the surveillance of
private homes or remote searches, and which may be used only if there is a sufficiently specific risk situation, is undermined.
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In functional terms, however, the provision is to be construed narrowly. It only allows
the transfer of information for the purpose of coordinating the exercise of the tasks of
federal and Laender authorities, respectively. Under this provision, the use of data is
limited to such internal coordination. If, in contrast, the authority receiving the data
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