e) In view of this, there is no longer any need to review the degree to which measures permitted by the provision also violate other fundamental rights or the principle
of specifying [the fundamental right which is restricted] contained in Article 19.1 sentence 2 of the Basic Law.
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II.
The empowerment to secret reconnaissance of the Internet contained in § 5.2 no.
11 sentence 1 alternative 1 of the North Rhine-Westphalia Constitution Protection Act
violates the secrecy of telecommunication guaranteed by Article 10.1 of the Basic
Law. Measures according to this provision can in certain cases constitute an encroachment on this fundamental right which is constitutionally not justified (1); Article
19.1 sentence 2 of the Basic Law is also violated (2). Its unconstitutionality makes the
provision null and void (3). The constitution protection authority may however continue to carry out measures of Internet reconnaissance insofar as these are not to be regarded as encroachments on fundamental rights (4).
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1. The secret reconnaissance of the Internet regulated in § 5.2 no. 11 sentence 1 alternative 1 of the North Rhine-Westphalia Constitution Protection Act covers measures by means of which the constitution protection authority obtains knowledge of
the contents of Internet communication via the channel technically provided therefor,
in other words for instance by calling up a Web site on the World Wide Web using a
Web browser (see above A I 1 a). In certain cases, this can encroach on the secrecy
of telecommunication. Such an encroachment is constitutionally not justified by the
impugned provision.
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a) The area protected by Article 10.1 of the Basic Law covers the ongoing telecommunication carried out using an information technology system that is connected to
the Internet (see above I 1 c, aa (1)). However, this fundamental right only protects
the confidence of the individual that knowledge of the telecommunication in which he
or she is involved is not being obtained by third parties. By contrast, the confidence of
the communication partners in one another is not the subject-matter of the fundamental rights protection. If a state investigation measure does not focus on unauthorised
access to telecommunication, but on the disappointment of the personal trust in the
communication partner, this does not constitute an encroachment on Article 10.1 of
the Basic Law (see BVerfGE 106, 28 (37-38)). The state’s obtaining knowledge of the
contents of telecommunication is hence only to be measured against the secrecy of
telecommunication if a state agency monitors a telecommunication relationship from
outside without itself being an addressee of the communication. By contrast, the fundamental right does not provide protection against a state agency itself establishing a
telecommunication relationship with a subject of fundamental rights.
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If a state agency obtains knowledge of the contents of telecommunication conducted via the communication services of the Internet via the channel technically provided
therefor, this shall only constitute an encroachment on Article 10.1 of the Basic Law if
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