the state agency is not authorised to do so by those involved in the communication.
Since the secrecy of telecommunication does not protect the mutual personal trust
of those involved in communication, the state agency is already authorised to collect
the communication contents if only one of several participants has permitted it such
access voluntarily.
The secret reconnaissance of the Internet accordingly encroaches on Article 10.1 of
the Basic Law if the constitution protection authority monitors secured communication
contents by using access keys which it collected without authorisation or against the
will of those involved in the communications. This is the case for instance if a password collected using keylogging is used in order to gain access to an e-mail inbox or
to a closed chatroom.
292
By contrast, an encroachment on Article 10.1 of the Basic Law is to be denied if for
instance a participant of a closed chatroom has voluntarily provided the person acting
for the constitution protection authority with his or her access, and as a consequence
the authority uses this access. Encroachment on the secrecy of telecommunication
certainly does not apply if the authority collects generally accessible contents, for instance by viewing open discussion fora or Web sites which are not password protected.
293
b) The encroachments on Article 10.1 of the Basic Law facilitated by § 5.2 no. 11
sentence 1 alternative 1 of the North Rhine-Westphalia Constitution Protection Act
are constitutionally not justified. The impugned provision does not meet the constitutional requirements as to empowerments to effect such encroachments.
294
aa) § 5.2 no. 11 sentence 1 alternative 1 of the North Rhine-Westphalia Constitution
Protection Act does not comply with the principle of the clarity of provisions and determinedness of provisions since the preconditions for encroachment are not sufficiently
precisely regulated because of the undeterminedness of subsection 2 of this provision (see above C I 2 a, bb).
295
bb) The impugned provision is furthermore not in compliance with the principle of
appropriateness in the narrower sense insofar as it is to be measured against Article
10.1 of the Basic Law.
296
The encroachment on the secrecy of telecommunication is grievous. On the basis of
the impugned provision, the constitution protection authority may access communication contents which may be sensitive in nature, and which may provide insight into the
personal matters and habits of the person concerned. It is not only the one who gave
rise to the surveillance measure who is concerned. The encroachment can rather
show a certain spread if information is obtained not only on the communication conduct of the party against whom the measure is addressed, but also on his or her communication partners. The secrecy of access increases the intensity of the encroachment. Additionally, because of the broad wording of the preconditions for
encroachment contained in § 7.1 no. 1 in conjunction with § 3.1 of the North Rhine-
297
52/60