(2) The fundamental rights protection provided by Article 10.1 of the Basic Law however does not cover the contents and circumstances of the telecommunication stored
subsequent to completion of the communication in the sphere of a subscriber, insofar
as he or she can take their own protective precautions against secret data access.
The specific dangers of spatially distanced communication which are to be averted by
secrecy of telecommunication do not then continue to apply to such data (see BVerfGE 115, 166 (183 et seq.)).
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(3) The protection effected by secrecy of telecommunication likewise does not apply
if a state agency monitors the use of an information technology system as such or
searches the storage media of the system. As to the collection of contents or circumstances outside the ongoing telecommunication, an encroachment on Article 10.1 of
the Basic Law does not apply even if a telecommunication connection is used for
transmission of the data collected to the evaluating authority, as is the case for instance with online access to stored data (see Germann, Gefahrenabwehr und
Strafverfolgung im Internet, 2000, p. 497; Rux, Juristenzeitung 2007, p. 285 (292)).
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(4) Insofar as the secret access to an information technology system serves to collect data also where Article 10.1 of the Basic Law does not provide protection against
access, a loophole in protection exists which is to be closed by the general right of
personality in its manifestation as a protection of the confidentiality and integrity of information technology systems.
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If a complex information technology system is technically infiltrated in order to perform telecommunication surveillance (“source telecommunication surveillance”), the
infiltration overcomes the critical hurdle to spying on the system as a whole. The endangerment thereby brought about goes far beyond what is entailed by the mere surveillance of ongoing telecommunication. In particular, the data stored on personal
computers which does not relate to the use of the system for telecommunication can
also be obtained. For instance, the conduct in using a personal computer for personal
purposes, the frequency of accessing certain services, in particular also the contents
of files created or – insofar as the infiltrated information technology system also controls appliances in households – the conduct in the personal dwelling can be discovered.
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According to information from the experts heard in the oral hearing, moreover, it
may happen that, data is collected following infiltration which is unrelated to the ongoing telecommunication, even if this is not intended. As a result – and in contradistinction to what is usually the case with traditional network-based telecommunication surveillance – there is always a risk for the person concerned that further personal
information is collected over and above the contents and circumstances of telecommunication. The specific endangerments of personality which this brings about cannot be countered or cannot be sufficiently countered by Article 10.1 of the Basic Law.
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Article 10.1 of the Basic Law is by contrast the sole fundamental right-related standard for the evaluation of an empowerment to engage in “source telecommunication
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