encroachment on the secrecy of telecommunication to be possible. The principle of
specifying the fundamental right restricted is only accounted for if the fundamental
right is explicitly named in the text of the Act as being restricted. Moreover, in view of
the fact that § 5.2 no. 11 of the North Rhine-Westphalia Constitution Protection Act
contains two different empowerments to encroach, it by no means emerges from the
statute with sufficient clarity for which of them the legislature at least anticipated the
possibility of an encroachment on Article 10 of the Basic Law.
3. The violation of § 5.2 no. 11 sentence 1 alternative 1 of the North RhineWestphalia Constitution Protection Act against Article 10.1 and Article 19.1 sentence
2 of the Basic Law leads to the nullity of the provision.
303
4. The nullity of the empowerment however does not lead to a situation in which
measures of Internet reconnaissance are in principle denied to the authority, insofar
as these do not encroach on fundamental rights.
304
Insofar as it does not fall under Article 10.1 of the Basic Law, the secret reconnaissance of the Internet in particular does not always encroach on the general right of
personality guaranteed by Article 2.1 in conjunction with Article 1.1 of the Basic Law.
305
a) The confidentiality and integrity of information technology systems guaranteed by
the general right of personality is not affected by measures of Internet reconnaissance since measures according to § 5.2 no. 11 sentence 1 alternative 1 of the North
Rhine-Westphalia Constitution Protection Act are restricted to data which the owner
of the system has provided for Internet communication – for instance the operator of a
Web server – using the channel technically provided therefor. The person concerned
himself or herself has opened his or her system by technical terms for such data collections. He or she cannot rely on these not being carried out.
306
b) At least as a rule, an encroachment on Article 2.1 in conjunction with Article 1.1 of
the Basic Law is also to be denied in its manifestation as a right to informational selfdetermination.
307
aa) The state is not in principle denied the possibility to obtain publicly accessible information. This also applies if personal information can be collected by these means
in an individual case (see for instance Böckenförde, Die Ermittlung im Netz, 2003, p.
196- 197; Zöller, Goltdammer’s Archiv für Strafrecht 2000, p. 563 (569)). There is
hence no encroachment on the general right of personality if a state agency collects
communication contents that are available on the Internet addressing all readers or at
least a group of individuals that is not further delimitated. This is the case, for instance, if the authority calls up a generally accessible Web site on the World Wide
Web, subscribes to a mailing list that is open to all comers or monitors an open chatroom.
308
An encroachment on the right to informational self-determination can however apply
if information obtained by viewing generally accessible contents is deliberately compiled, stored and where appropriate evaluated using further data, and a special dan-
309
54/60