if third parties have been able to infiltrate the system on which the data has been
stored. Finally, it is not possible in view of the speed of the development of information technology to reliably forecast the technical means which users may have to protect themselves in future.
c) A need for protection that is relevant from the fundamental rights perspective
emerges from the significance of the use of information technology systems for the
development of the personality and from endangerments of the personality linked
with this use. The individual relies on the state respecting the expectations of the integrity and confidentiality of such systems which are justified with regard to the unhindered development of the personality. The fundamental rights guarantees contained
in Article 10 and Article 13 of the Basic Law, like those manifestations of the general
right of personality previously developed in the case-law of the Federal Constitutional
Court, do not adequately take account of the need for protection arising as a consequence of the development of information technology.
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aa) The guarantee of the secrecy of telecommunication according to Article 10.1 of
the Basic Law protects the non-physical transmission of information to individual recipients with the aid of telecommunication traffic (see BVerfGE 67, 157 (172); 106, 28
(35-36)), but not the confidentiality and integrity of information technology systems.
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(1) The protection of Article 10.1 of the Basic Law covers telecommunication, regardless of the method of transmission (cable or broadcast, analogue or digital transmission) and the form of expression (speech, pictures, sound, symbols or other data)
which are used (see BVerfGE 106, 28 (36); 115, 166 (182)). The scope of protection
of the secrecy of telecommunication accordingly also covers the communication services of the Internet (see re e-mails BVerfGE 113, 348 (383)). What is more, not only
the contents of the telecommunication are protected against knowledge being obtained of them, but also their circumstances. This includes in particular whether,
when and how frequently telecommunication traffic has taken place or has been attempted between which persons or telecommunication facilities (see BVerfGE 67,
157 (172); 85, 386 (396); 100, 313 (358); 107, 299 (312-313)). In this context, the
confidentiality of telecommunication encounters both old and new endangerments of
personality emerging from the increased significance of information technology for
the development of the individual.
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Insofar as an empowerment is restricted to a state measure by means of which the
contents and circumstances of the ongoing telecommunication are collected in the
computer network, or the data related thereto is evaluated, the encroachment is to be
measured against Article 10.1 of the Basic Law alone. The scope of protection of this
fundamental right is affected here regardless of whether in technical terms the measure targets the transmission channel or the terminal used for telecommunication
(see BVerfGE 106, 28 (37-38); 115, 166 (186-187)). This also applies in principle if
the terminal is a networked complex information technology system the use of which
for telecommunication is only one among several types of use.
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