dards of a hypothetical re-collection of data, which is, however, decisive for the transfer of data for a changed purpose (see above, D I 2 b). Indeed, the transfer of data generally pursues the objective of protecting particularly weighty legal interests in
that it references the duties of the offices for the protection of the Constitution and the
Military Counter Intelligence Agency. Furthermore, with regard to § 8 of the Act Regulating the Cooperation between the Federation and the Federal States in Matters
Relating to the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Bundesverfassungsschutzgesetz – BVerfSchG), which is
decisive for a hypothetical re-collection of data, the transfer of certain data, such as
that obtained through measures taken pursuant to § 20g BKAG […], can be justified
to a relatively broad extent. Yet a provision that allows the transfer of essentially any
data for the purpose of supporting the exercise of tasks without determining specific
interference thresholds to that end is disproportionately broad. Indeed, the criterion
of a hypothetical re-collection of data does not generally require that a specific risk
situation, which is required for the collection of data – and which is generally also required for data collection by the offices for the protection of the Constitution, irrespective of the fact that their mandate is essentially limited to activities in the preliminary
stages of a threat (cf. BVerfGE 100, 313 <383 and 384>; 120, 274 <329 and 330>;
130, 151 <205 and 206>) – also always be a precondition for each and every case
of data transfer (see above, D I 2 b bb). However, for constitutional reasons, it is imperative that the transfer of data be limited to data which, from the perspective of the
Federal Criminal Police Office, not only constitutes a specific evidentiary basis for further investigations in criminal offences or dangers to high-ranking legal interests but
also, at the same time, reveals specific insights on the endangerment of such legal
interests (cf. on the transfer of data from intelligence services to the Federal Criminal
Police Office BVerfGE 133, 277 <329 para. 123>) that are relevant for assessment of
a situation in accordance with the duties of the offices for the protection of the Constitution. Regarding the transfer of data stemming from remote searches, it is furthermore necessary – like in the case of data stemming from the surveillance of private
homes which the legislature has already made specific provision for in this respect –
that the interference threshold for the data collection as such is reached, namely a
specific impending danger (cf. BVerfGE 120, 274 <326, 328 and 329>).
e) Accordingly, § 20v sec. 5 sentence 4 BKAG, too, does not satisfy the constitutional requirements. The provision allows a transfer of data to the Federal Intelligence
Service (Bundesnachrichtendienst) subject to standards equivalent to those set out in
§ 20v sec. 5 sentence 3 no. 1 BKAG. The differences in wording do not – considering, too, the legislative reasons of the Act (cf. BTDrucks 16/9588, p. 34) – have an obvious substantive meaning and cannot, at any rate, alter the appraisal in terms of constitutional law. The constitutional deficiencies of § 20v sec. 5 sentence 3 no. 1 BKAG
also arise with regard to this provision.
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4. Finally, all transfer powers lack overarching statutory provisions that ensure sufficient supervisory control. The data collection requirements calling for the substantive
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