events taking place in the dwelling are intended to be monitored. By contrast, an encroachment on Article 10 of the Basic Law might take place in an individual case. The
provision however is said to meet the constitutional requirements as to the justification of the encroachment.
The exceptions from the obligation to notify laid down in § 5.3 sentence 2 of the
North Rhine-Westphalia Constitution Protection Act are also said to be compatible
with the Basic Law.
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4. The Saxon State Government states that communication within Islamist and
Islamist-terrorist groups is largely taking place via the Internet. Left-wing autonomists
are also said to be using the Internet and mobile telephones offering protected communication. Access via classical intelligence service means has become impossible
in some cases, given the increased use of information technology systems by persons who are being monitored.
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§ 5.2 no. 11 of the North Rhine-Westphalia Constitution Protection Act is said not to
grant powers to perform encroachments on Article 10.1 or Article 13.1 of the Basic
Law. Apart from this, the provision is said to be sufficiently precise and proportionate
in other respects. The core area of private life is however said not to be affected since
the citizen does not depend on a personal computer for highly personal communication. § 5.3, § 5a.1 and § 13 of the North Rhine-Westphalia Constitution Protection Act
are also said to be in compliance with the Basic Law.
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5. The Federal Administrative Court expresses constitutional reservations against
the empowerment to secretly access information technology systems contained in §
5.2 no. 11 of the North Rhine-Westphalia Constitution Protection Act. There are said
to be weighty arguments both for and against the application of Article 13 of the Basic
Law. At all events, regulated access is said to encroach on the right to informational
self-determination. It is said to appear doubtful whether this encroachment is proportionate. It is said to suggest itself in view of the weight of the encroachment on fundamental rights to make an “online search” contingent on a concrete danger to certain
legal interests. The statute is said not to contain any precautions to protect the core
area of private life.
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6. The Federal Commissioner for Data Protection and Freedom of Information and
the Land Commissioner for Data Protection and Freedom of Information of North
Rhine-Westphalia consider the impugned provisions to be unconstitutional. Their
statements on this largely concur with the complainants’ line of argument in their
content-related argumentation and in their conclusions.
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7. The parliamentary groups of the SPD and Alliance 90/The Greens in the North
Rhine-Westphalian Landtag have submitted a legal expert report that commissioned
by them. This report concludes that the impugned provisions are compatible neither
with the Basic Law nor with the North Rhine-Westphalian Land Constitution.
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8. The experts Andreas Bogk, Dirk Fox, Professor Dr. Felix Freiling and Professor
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