The complainant admits that recent regulations of police law provide powers of encroachment upon fundamental rights in cases of abstract threats. It is the complainant’s position, however, that no provision goes as far as the challenged Act. By
allowing a broad computer search of data that is not justified by a specific threat or
suspicion of a specific criminal offence, the Act departs from the classic principles
which justify encroachment upon fundamental rights under police law and under the
law of criminal procedure. These classic principles, which are consistent with the rule
of law, require that there must be either a threat (under police law) or the suspicion of
a criminal offence (under the law of criminal procedure). Apart from the "categories of
threat" designated by law, the challenged Act imposes no preconditions regarding
threats or specified suspicions of criminal offences. Encroachments upon fundamental rights which are completely removed from the tangible suspicion of a criminal offence have hitherto always been regarded as unconstitutional. The affected holders
of fundamental rights are affected to a more than insignificant degree. Rather, the
complainant argues, the core content of the freedoms guaranteed by fundamental
rights is continually diminished up to the point of abrogation. This violates the essential content of the fundamental right in question.
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The complainant charges that the challenged Act also violates the basic principle of
the separation of powers established by the principle of the rule of law. The complainant contends that the Act completely withdraws the activity of the Federal Intelligence Service from judicial control over its power to order monitoring, especially by
extensively excusing the Federal Intelligence Service from the duty to inform those
being monitored that the monitoring has taken place. To the extent that the law, in
general practice, precludes subjects of data monitoring (who are not suspected of illegal activity) from being informed that the monitoring has taken place, the law violates
Article 19.4 in conjunction with Article 10.2(2) of the Basic Law.
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The complainant argues that the concrete extension of strategic surveillance to general threats connected with criminal offences is not covered by the exception to the
guarantee of communications privacy provided by Article 10.2(2) of the Basic Law.
Pursuant to its wording, its legislative history and its interpretation, the exception applies only to the protection of the free democratic basic order and to the protection of
the existence or the security of a Land (Federal state). The departure from the principle of judicial review of executive acts has been permitted by the parliament to the extent that: (1) there is a factual reason for this which is free from arbitrariness; and (2)
the principle of the separation of powers, with its mutual checks and balances, is observed. With a view to the strategic surveillance of the threat of foreign aggression it
had been regarded as permissible to prefer, over the procedure that would have normally been required, i.e. control by the courts, control of surveillance by a so-called
political entity. The parliament is not free to extend this control to other classes of
threat, especially to general threats associated with crime.
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The complainant charges that, apart from this, the Federal parliament does not have
the legislative competence to transform the Federal Intelligence Service into, what in
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16/77