be implemented (see BVerfGE 115, 320 (345-346); Federal Constitutional Court, Order of 13 June 2007 – 1 BvR 1550/03 et al. –, Neue Juristische Wochenschrift 2007,
p. 2464 (2469)).
§ 5.2 no. 11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution
Protection Act does not comply with this. The measures provided for in this norm entail encroachments on fundamental rights which are so intensive that they are disproportionate to the public investigation interest emerging from the regulated occasion
for the encroachment. What is more, there is a need for supplementary procedural requirements in order to account for the interests of the person concerned protected by
fundamental rights; these are also missing.
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(1) § 5.2 no. 11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution
Protection Act grants powers to perform encroachments of high intensity on fundamental rights.
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(a) Data collection by the state from complex information technology systems shows
considerable potential for researching the personality of the person concerned. This
already applies to one-off, partial access, such as the seizure or copying of storage
media of such systems (see re such case constellations for instance BVerfGE 113,
29; 115, 166; 117, 244).
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(aa) Such secret access to an information technology system provides the acting
state agency with access to a stock of data which may far exceed traditional sources
of information in terms of its scope and diversity. This is a result of the many different
possibilities for use offered by complex information technology systems which are associated with the creation, processing and storage of personal data. In particular, according to the current habits of use, such appliances are typically used deliberately to
also store personal data of increased sensitivity, for example private text, pictorial or
sound files. The available data stock may include detailed information on personal
circumstances and on the life of the person concerned, the private and business correspondence made via various communication channels, or indeed diary-like personal records.
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State access to such comprehensive data stocks entails the obvious risk that the
collected data in an overall view facilitates comprehensive conclusions to be drawn
on the personality of the person concerned, ranging to the formation of conduct and
communication profiles.
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(bb) Insofar as data is collected which provides information on the communication of
the person concerned with third parties, the intensity of the encroachment on fundamental rights is further increased by virtue of the fact that the possibility for the citizen
to participate in telecommunication without being monitored – also within the public
good – is restricted (see on the collection of connection data BVerfGE 115, 166 (187
et seq.)). Collection of such data indirectly impairs the freedom of the citizen because
he or she may be prevented from engaging in uninhibited individual communication
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