sibility of initial review.
Insofar as the Senate assumes that the powers to a further use of the data collected
in the context of the protection against threats from terrorism and the transfer of such
data to domestic authorities and authorities in third countries are unconstitutional in
several respects, I cannot fully agree to this either. This applies in particular insofar as
the Senate states that it will permit the use of lawfully collected data in further contexts only in order to protect the same or equally important legally protected interests.
The judgment predicates the transfer and use of the data for other purposes on
whether, even after a change in purpose, this data serves to protect legally protected
interests or to uncover criminal offences of such a weight that this could, by constitutional standards, justify collecting them again with comparably weighty means (criterion of a hypothetical re-collection of data). This perspective may be justified with regard to findings that were obtained through highly intrusive, particularly significant
interferences, which is the case, for example, when measures such as the surveillance of private homes and remote searches were employed. However, with regard
to other interferences, which result in so-called coincidental findings, this can, in my
opinion, lead to hardly tolerable results since it requires the rule-of-law order to accept the occurrence of crimes and damage to legally protected interests. On condition
that such coincidental findings were obtained through a lawful and thus also constitutional interference, my view is that it is an unacceptable consequence that a state under the rule of law is forced to deliberately “look away”. This deprives the potentially
concerned individuals or the legally protected interests of the necessary protection
while giving priority to the protection of the data of those persons whom the measures
at issue actually target, especially given that this case does not concern a scenario of
a change in purpose of mass data that was collected without cause and very broadly.
As for the additional statutory provisions called for by the Senate with regard to the
transfer of data to authorities in other countries, I do not share the view that these are
constitutionally required. The relevant provision (§ 14 BKAG) could have been interpreted in conformity with the Constitution. The provision explicitly states that the
transfer of personal data is prohibited if there are reasons to believe that the data
could be used in a manner which would violate the purpose of a German law or if, in
the individual case, the protection-worthy interests of the person concerned prevail.
This includes the existence of an appropriate data protection standard in the receiving state. The Act also contains transfer prohibitions and grounds for denial (§ 27 BKAG). With these, it can easily be ensured that the transfer of data does not in any way
promote human rights violations in other states and that a prior ascertainment of the
use of the transferred data in the receiving country takes place. Also in this context,
the specifications in the regulatory framework which the legislature is now forced to
create will inflate the text of this Act which is already inundated, badly legible and
hardly comprehensible, leading to the opposite of norm specificity. However, in its
practical application, there will not be any corresponding notable increase in the pro-
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