stage in view of the gravity of the encroachment if events are known only by
relatively diffuse indications of possible dangers. The factual situation is then frequently marked by a high degree of ambivalence of the significance of individual observations. The events can remain in harmless contexts, but can also constitute the
commencement of an event culminating in danger (see on the prevention of criminal
offences BVerfGE 110, 33 (59)).
β) The constitutional requirements placed on the regulation of the actual occasion
for the encroachment are to be respected in the case of secret access to an information technology system for all empowerments to effect an encroachment which have
a preventive objective. Since the impairment caused by the encroachment is the
same in all these cases for the persons concerned, there is no reason as to its requirements for authority-related distinction, such as between police authorities and
other authorities entrusted with preventive tasks, such as constitution protection authorities. It is in principle without relevance for the weighting of secret access to an information technology system that police and constitution protection authorities have
different tasks and powers, and in consequence can execute measures with differing
levels of encroachment.
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It is true at the same time that there are distinctions between the empowerments of
the various authorities with preventive tasks which can be justified against the standard of the constitution. The special purposes in the field of strategic telecommunication surveillance by the Federal Intelligence Service (Bundesnachrichtendienst) do
justify that the preconditions for encroachment are determined differently than in police law or in the law of criminal procedure (see BVerfGE 100, 313 (383)). The preconditions for intervention for investigative measures can also be differently structured, depending on which authority carries them out and what objective they have in
mind. Thus, the special tasks of the constitution protection authorities can for instance be taken into account for reconnaissance of anti-constitutional activities in the
run-up to concrete dangers (see in general terms on the problem of adequate investigation regulations during the run-up stage Möstl, Deutsches Verwaltungsblatt – DVBl
2007, p. 581; Volkmann, Juristenzeitung 2006, p. 918). It is hence in principle constitutionally unobjectionable that the constitution protection authorities may also deploy
intelligence service means in order to obtain information about groups which act
against the interests protected by the Constitution Protection Act – at least for the
time being – by legal means. It is also not to be required for the deployment of such
means in general terms that concrete suspicion should exist over and above the factual indications that are always required for such activities (see for instance § 7.1 no.
1 in conjunction with § 3.1 of the North Rhine-Westphalia Constitution Protection Act).
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However, the legislature is also bound by constitutional requirements emerging from
the principle of proportionality with the regulation of the individual powers of security
authorities whose task consists of preliminary reconnaissance. This may mean that
also those authorities may only be empowered to carry out certain intensive encroachments on fundamental rights if more stringent requirements are met as to the
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