WEBER AND SARAVIA v. GERMANY DECISION
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following the terrorist attacks of 11 September 2001. As regards
international arms trafficking (point 3), it had, for example, been possible to
prevent the export of dual-use goods into countries subject to an embargo
and to improve export control with the help of strategic monitoring. It was
impossible to counter these threats without resorting to strategic monitoring
of telecommunications.
110. The Government argued that the way in which monitoring
measures were taken and their extent were likewise not excessive. At the
relevant time, merely some ten per cent of all telecommunications had been
conducted by wireless means and had therefore been potentially subject to
monitoring. In practice, monitoring was restricted to a limited number of
foreign countries. By virtue of section 3(2), third sentence, the telephone
connections of German nationals living abroad could not be monitored
directly. The identity of persons telecommunicating could only be
uncovered in rare cases in which a catchword had been used.
111. The applicant submitted that the scope of automatic surveillance
under section 3(1) of the amended G 10 Act was far too wide, as there were
no longer any geographical restrictions and as it was possible to identify
persons and, if they were using mobile telephones, to analyse their
movements. By virtue of section 3(2) of the amended G 10 Act, the second
applicant could even be monitored deliberately. The Federal Intelligence
Service was entitled to monitor all telecommunications within its reach
without any reason or previous suspicion. Its monitoring powers therefore
inhibited open communication and struck at the roots of democratic society.
It was irrelevant whether or not it was already possible from a technical
point of view to carry out worldwide monitoring.
112. In the applicant’s view, these wide monitoring powers did not
correspond to a pressing need on the part of society for such surveillance.
There was no longer a threat of an armed attack on the Federal Republic of
Germany by a foreign State possessing nuclear weapons, as there had been
during the Cold War. Nor was there any other comparable current danger to
be averted. In particular, drug trafficking, counterfeiting of money and
money laundering or presumed dangers arising from organised crime did
not constitute a danger to public safety sufficient to justify such an intensive
interference with the telecommunications of individuals. The fact that
interception was limited to content of “relevance for the intelligence
service” (“nachrichtendienstliche Relevanz”), as a result of the decision of
the Federal Constitutional Court, was not sufficient to constrain effectively
the monitoring powers of the Federal Intelligence Service.
113. Moreover, the duty to have the interception of telecommunications
authorised by the highest authorities of the Länder or a Minister of the
Federal Government and the prior supervision of monitoring measures by
an independent parliamentary committee did not avert the danger of abuse.
It was likely that the interferences in question had been ordered in a result-