by fear of surveillance, even if surveillance does not take place until after the fact.
What is more, such data collection shows in this respect a considerable spread,
which increases the gravity of the encroachment, given that data collection of necessity covers communication partners of the target person, i.e. third parties, without it
being necessary for the preconditions for such access to apply to these persons (see
on telecommunication surveillance BVerfGE 113, 348 (382-383); furthermore BVerfGE 34, 238 (247); 107, 299 (321)).
(b) The gravity of the encroachment on fundamental rights is particularly severe if –
as provided for by the impugned provision – secret technical infiltration facilitates the
longer-term surveillance of the use of the system and the ongoing collection of the data in question.
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(aa) The scope and diversity of the data stock which can be obtained by such access are still much larger than with one-off, partial data collection. Access also makes
available to the investigation authority volatile data that is only kept in the working
memory, or data only temporarily stored on the storage media of the target system. It
also makes it possible to track the entire Internet communication of the person concerned over a longer period. Moreover, the spread of the investigative measure can
be increased if the target system is included in a (local) network to which access is
expanded.
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Volatile data or data stored only temporarily can be particularly relevant to the personality of the person concerned, or can facilitate access to further, particularly sensitive data. This applies for instance to cache storage, which is established by service
programs such as Web browsers, the evaluation of which can facilitate conclusions
on the use of such programs, and hence indirectly on the preferences or communication habits of the person concerned, or for passwords, with which the person concerned gains access to technically secured contents on his or her system or the network. What is more, longer-term surveillance of Internet communication, as facilitated
by the impugned provision in comparison to one-off collection of communication contents and communication circumstances, also constitutes a considerably more intensive encroachment. Finally, it should be considered that regulated access is intended
and suitable amongst other things to circumvent the deployment of encryption technology. This overcomes the individual precautions taken by the person concerned to
protect himself or herself against access to data not authorised by him or her. The
prevention of such informational self-protection increases the gravity of the encroachment on fundamental rights.
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Also the risk of the formation of conduct and communication profiles increases by
virtue of the possibility of comprehensively monitoring the use of the target system for
a longer period. By these means, the authority can largely research the personal circumstances and the communication conduct of the person concerned. Such comprehensive collection of personal data is to be regarded as a particularly intense encroachment on fundamental rights.
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