the impugned provisions the constitutional questions of secret access to information
technology systems using technical means:
It is said to be necessary to distinguish between such measures and the surveillance of telecommunication falling under Article 10 of the Basic Law. It has been presumed in the case of the “online searches” that have been carried out individually in
the past by the Federal Office for the Protection of the Constitution that the sole fundamental right standard is Article 2.1 in conjunction with Article 1.1 of the Basic Law.
However, Article 13.1 of the Basic Law is increasingly occurring as a possibly relevant standard for “online searches”. The technical possibility of the repeated incursion
into or longer-term connection to a computer is said to make the “online search” more
akin to surveillance. At least in the perception of the persons concerned, a very comprehensive part of the private sphere which had previously been spread among the
rooms of a dwelling can now be concentrated in the computer.
131
Access is said to require special procedural safeguards as a qualified means of constitution protection. The protection of the core area of private life is to be maintained,
even if it cannot already be secured on copying and transferring the information considered as relevant by the software on the basis of certain search parameters, but only when subsequently inspecting the files on the authority’s computer. In view of the
similarity to measures of house searches and monitoring of dwellings, it must be considered to place access under the reservation of a judicial order. In principle, an obligation to notify should be provided for. Moreover, “online searches” should be subject
to stringent requirements as to proportionality. In view of its encroachment intensity,
such a measure can only be the ultima ratio for a constitution protection authority.
132
2. The Government of the Land North Rhine-Westphalia considers the constitutional
complaints to be inadmissible, but at any rate to be unfounded:
133
According to the Government of the Land North Rhine-Westphalia, the measures
provided for in § 5.2 no. 11 of the North Rhine-Westphalia Constitution Protection Act
do not bring about any encroachment on Article 13 of the Basic Law. This fundamental right is said to apply only if a state measure shows a concrete spatial reference, if
in other words spatial boundaries are overcome. This is said not to be the case here.
Measures of reconnaissance of the Internet, such as the surveillance of e-mail traffic
or of Internet telephony, are however said to be measured against the standard of Article 10 of the Basic Law. Moreover, the right to informational self-determination is
said to be relevant.
134
§ 5.2 no. 11 of the North Rhine-Westphalia Constitution Protection Act is said to satisfy the principle of the clarity of provisions. The provision is said to have been worded
in a manner that is open to developments with regard to possible technical novelties.
The provision is further said to respect the core area of private life. The required protection of the core area is said to be ensured by § 4.1 of the Act re Article 10 of the Basic Law, to which reference is said to be made. The impugned provision is said finally
also to be proportionate. The scope of action for the constitution protection authority
135
18/60