regulation of the occasion for the encroachment. This applies for instance particularly
to secret access to an information technology system which entails a risk that the
person concerned is rendered vulnerable to a broad state investigation of his or her
personality, regardless of the authority carrying it out. Even if it were not to be possible to develop statutory measures which are specifically tailored to authorities which
act in the run-up stage to the occasion for the encroachment which comparably account for the gravity and the intensity of the endangerment of fundamental rights in a
manner comparable to that which is for instance provided by the traditional definition
of danger in police law, this would not be a constitutionally acceptable occasion to
reduce the factual preconditions for an encroachment of the nature at hand.
(d) Furthermore, empowerment to effect secret access to information technology
systems must be linked with suitable statutory precautions in order to secure the interests of the person concerned under procedural law. If a norm provides for secret
investigation activities on the part of the state which – as here – affect particularly protected zones of privacy or demonstrate a particularly high intensity of encroachment,
the weight of the encroachment on fundamental rights is to be accounted for by suitable procedural precautions (see Federal Constitutional Court, Order of 13 June
2007 – 1 BvR 1550/03 et al. –, Neue Juristische Wochenschrift 2007, p. 2464 (2471),
with further references). In particular, access is in principle to be placed under the
reservation of a judicial order.
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(aa) Such reservation facilitates the preventive control of a planned secret investigation measure by an independent and neutral control body. Such control may constitute a significant element of the effective fundamental rights protection. It is not suited
to compensate for the shortcomings of an encroachment threshold which is regulated
too undeterminedly, or one which is set too low, since the independent review instance can only ensure that the regulated preconditions for encroachment are respected (see BVerfGE 110, 33 (67-68)). It can however guarantee that the decision
on a secret investigation measure takes sufficient account of the interests of the person concerned if the person concerned himself or herself is unable to take measures
in advance to defend his or her interests because of the secret nature of the measure.
In this respect, the control serves the purpose of the “compensatory representation”
of the interests of the person concerned in the administrative procedure (see Saxon
Constitutional Court (SächsVerfGH), Judgment of 14 May 1996 – Vf.44-II-94 –, Juristenzeitung 1996, p. 957 (964)).
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(bb) If a secret investigation measure leads to a grievous encroachment on fundamental rights, preventive control by an independent body is constitutionally required
because the person concerned would otherwise remain unprotected. The legislature
is however in principle granted latitude in legislating on the detailed structure of the
control, such as in the decision on the controlling body and the applicable proceedings. In case of a particularly grievous encroachment on fundamental rights, such as
secret access to an information technology system, the latitude is reduced such that
the measure is in principle to be placed under the reservation of a judicial order. Be-
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