vidual monitoring in accordance with the principle of proportionality. The legal regulation according to which "tatsächliche Anhaltspunkte" (factual grounds), i.e. intelligence collected in the lead-up to a criminal offence below the threshold of the
criminal-law standard of an initial suspicion, are already sufficient, permits a change
of objective in the case of all intelligence which contains, albeit remote, indications
towards the specified elements of a criminal offence, thus permitting the impermissible collecting of data that can serve as the factual basis for individual proceedings.
The Federal Data Protection Commissioner concluded that, unlike in the case of the
original strategic surveillance regulation, the collecting of data is now aimed at gaining intelligence which is also of interest for the secondary objectives. In this type of
encroachment, which consists of the obtaining of intelligence and which has a double
relevance from the outset, the result of any authorisation to change the objective
which would permit the secondary use of any relevant intelligence is that an investigation that is independent of the existence of a suspicion factually takes place for the
secondary objective as well. If in the case of an encroachment that has a double relevance, too many subjects of monitoring are affected by the secondary use of the intelligence obtained, the provision that regulates the change of objective must, as a legal
interface, assume a compensatory filtering function. In the opinion of the Federal Data Protection Commissioner, in this context a secondary use can only be permissible
to the extent that the suspicion becomes more concrete in a way that goes considerably beyond the initial suspicion and that ensures in a sufficient way that the number
of factually uninvolved persons who become targets of measures by the security
agencies is not disproportionately large.
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The Federal Data Protection Commissioner argued that the transfer of intelligence
obtained in the lead-up to a criminal offence by means of investigations that have a
double relevance undermines the separation between the Federal Intelligence Service and "police agencies" to such an extent that it is reduced to a mere formality. In
this respect, § 3.5 of the G 10 Act also violates the principle of separation between
the secret services and the police. For co-operation to take place between the Federal Intelligence Service and “police agencies” in accordance with the Constitution, a filter that takes the form of a higher threshold of suspicion is required. If agencies that
receive collected information hold police powers and are therefore, for reasons of the
rule of law, not authorised to conduct lead-up investigations with intelligence service
means, this threshold is even higher than in the case of the Federal Intelligence Service co-operating with the other intelligence services.
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The Federal Data Protection Commissioner asserted that, in consideration of the
special need for protection and the special risks posed by the threats at issue in the
G 10 Act, a filter between primary and secondary objective is required that provides
especially effective organisational safeguards. By means of § 3.5(2) of the G 10 Act,
the parliament has established procedural arrangements which reserve the decision
to an official who is qualified to hold judicial office. This provision serves to take an informed decision but does not assure that the interests of the subject of monitoring are
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