With regard to the use of data obtained by means of surveillance measures, the
judgment refines and consolidates the idea of a “hypothetical re-collection” as the notional base for determining the conditions for a change in purpose. I cannot back the
exception called for by this concept, whereby every further use and change in purpose with regard to data from the surveillance of private homes or remote searches
must be justified by an imminent or a sufficiently specific danger, just as for the initial
collection of the data. Even in the context of the surveillance of private homes, the actual massive interference with privacy takes place when the investigation accesses
the protected area. A further use – even one with a change in purpose – does indeed
perpetuate this interference, but, even with regard to the surveillance of private
homes (and similarly with remote searches), it does not reach the level of severity of
the initial interference. The further use and change in purpose of intelligence obtained
from surveillance measures must thus be subject to the general rules. The Senate
should have corrected its existing case-law accordingly.
67/71