sion, given that a change in use of this data is construed more narrowly in § 161
sec. 2 sentence 2, § 100d sec. 5 no. 3 StPO. Irrespectively, however, this threshold
does not satisfy the standards developed with regard to the criterion of a hypothetical
re-collection of data. Regarding the surveillance of private homes, the Federal Constitutional Court has explicitly held that a maximum term of imprisonment of more
than five years does not constitute a sufficient threshold for ordering such a measure
and this also applies to any further use of the data, including its use as a mere evidentiary basis for further investigations (cf. BVerfGE 109, 279 <347 and 348, 377>).
The same applies to access to information technology systems, which is an equally
significant interference and thus subject to the same requirements. While the requirements for the surveillance of telecommunications are indeed less strict, the collection
of data and, accordingly, the power to transfer, which constitutes a change in purpose, at least require that there be a focus on serious criminal offences (cf. BVerfGE
125, 260 <328 and 329>; 129, 208 <243>). For that reason, it is disproportionate that
§ 20v sec. 5 sentence 1 no. 3, 2nd sentence thereof BKAG states that criminal offences subject to a maximum term of imprisonment of more than five years are sufficient as this also includes crimes of medium severity and possibly also volume crime
offences such as simple theft, public slander or simple bodily harm.
Furthermore, it is constitutionally objectionable that data stemming from the visual
surveillance of private homes is not barred from being transferred to law enforcement
authorities. With regard to law enforcement, Art. 13 sec. 3 GG only allows the
acoustic surveillance of private homes. This may not be undermined by a transfer of
data obtained through a preventatively ordered visual surveillance of private homes.
317
cc) While the transfer of data from particularly intrusive surveillance measures is
subject to qualified requirements, the transfer of data obtained by means of lowthreshold interferences (cf. for example §§ 20b et seq., §§ 20q et seq. BKAG) is constitutionally permissible on a wider scale. To that end, the requirements set out in
§ 20v sec. 5 sentence 1 no. 3 BKAG can provide a viable basis. However, in this respect the legislature must distinguish between the different types of data. In its current version, the provision is too broad in that is does not distinguish between different data, and it is thus disproportionate.
318
d) Also § 20v sec. 5 sentence 3 no. 1 BKAG, which allows the transfer of data to offices for the protection of the Constitution (Verfassungsschutzbehörden) and the Military Counter Intelligence Agency (Militärischer Abschirmdienst), is incompatible with
constitutional requirements.
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The provision, which applies to all data except that obtained through the surveillance of private homes (cf. § 20v sec. 5 sentence 5 BKAG), allows the transfer of data
to the abovementioned authorities provided that there are factual indications suggesting that the data is necessary for the gathering and analysis of information on endeavours falling within the remit of the offices for the protection of the Constitution or
the Military Counter Intelligence Agency. For that reason, it does not satisfy the stan-
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