Outline for the oral hearing of the First Senate of the Federal Constitutional Court in the proceedings “Strategic telecommunications surveillance of foreigners in third countries by the Federal Intelligence Service” on 14 and 15 January 2020

Press Release No. 92/2019 of 20 December 2019

Reference: 1 BvR 2835/17

As announced in Press Release No. 87/2019 of 3 December 2019, the First Senate of the Federal Constitutional Court will conduct on oral hearing on 14 and 15 January 2020 at 10:00 a.m. in respect of a constitutional complaint challenging the strategic telecommunications surveillance of foreigners abroad by the Federal Intelligence Service.

The oral hearing is expected to proceed as follows:

 I.       Procedural formalities, facts of the case

II.      Introductory statements by the parties

III.    Admissibility

(including legal ability of officials of foreign legal entities to invoke fundamental rights)

IV.    General questions

1.      Applicability of fundamental rights abroad

2.      Requirement that the statutory basis specify affected fundamental rights (Zitiergebot) pursuant to Art. 19(1) second sentence of the Basic Law

3.      Federal legislative competence

V.      Interpretation of the challenged provisions, technical aspects, administrative practice – assessment under constitutional law (including weight of interference, proportionality, procedural requirements)

1.    Data collection and analysis
(authorising orders, filtering processes, search terms, surveillance targeting individuals, traffic data retention, data collection carried out on foreign territory, protecting the core of private life and confidentiality in relationships of trust)

2.    Data sharing
(recipients, changes in purpose, threshold for interferences, rule of law safeguards regarding data use)

3.    Cooperation with foreign intelligence services
(collection of content and traffic data for other services, use of search terms provided by other services, automatic transfer of preselected and unselected raw data)

4.    Legal remedies and oversight
(powers of the Independent Oversight Committee [Unabhängiges Gremium] and of the Federal Data Protection Officer, interplay of different oversight mechanisms, effectiveness of oversight, third party rule, remedies of affected individuals;
possibilities of and requirements for effective, feasible and independent oversight regarding matters nos. 1 to 3; practice in other countries)

VI.    Legal effects (of the Court’s decision), concluding statements