c) Finally, there are no adequate statutory precautions to avoid encroachments on
the absolutely protected core area of private life by measures according to § 5.2 no.
11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution Protection
Act.
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aa) Secret surveillance measures carried out by state agencies must respect an inviolable core area of private life the protection of which emerges from Article 1.1 of
the Basic Law (see BVerfGE 6, 32 (41); 27, 1 (6); 32, 373 (378-379); 34, 238 (245);
80, 367 (373); 109, 279 (313); 113, 348 (390)). Even overriding interests of the public
cannot justify encroachment on it (see BVerfGE 34, 238 (245); 109, 279 (313)). The
development of the personality in the core area of private life includes the possibility
to express inner events such as perceptions and feelings, as well as considerations,
views and experiences of a highly personal nature, without fear that state agencies
may have access to them (see BVerfGE 109, 279 (314)).
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In the context of secret access to an information technology system, the danger exists that the state agency might collect personal data which is to be attributed to the
core area. For instance, the person concerned may use the system to establish and
store files with highly personal contents, such as diary-like records or private film or
sound documents. Such files can enjoy absolute protection, as can for instance written embodiments of highly personal experiences (on this see BVerfGE 80, 367 (373
et seq.); 109, 279 (319)). Secondly, insofar as it is used for telecommunication purposes, the system can be used to transmit contents which can equally fall within the
core area. This applies not only to speech telephony, but for instance also to telecommunication using e-mails or other Internet communication services (see BVerfGE
113, 348 (390)). The absolutely protected data can be collected with different types of
access, such as with the inspection of storage media, just as with the surveillance of
ongoing Internet communication or indeed with full surveillance of the use of the target system.
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bb) In the event of secret access to the information technology system of the person
concerned, there is a need for special statutory precautions protecting the core area
of private life.
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To manage their personal matters, and for use in telecommunication also with close
persons, citizens increasingly use complex information technology systems which offer them development possibilities in the highly personal sphere. In view of this, an investigation measure such as access to an information technology system, using
which the data available on the target system can be comprehensively collected, entails in comparison to other surveillance measures – such as the use of the Global
Positioning System as a tool of technical monitoring (see on this BVerfGE 112, 304
(318)) – an increased danger of data being collected which have highly personal contents.
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Because of the secrecy of access, the person concerned has no opportunity himself
or herself to endeavour to ensure prior to or during the investigative measure that the
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