saw Pact has been dissolved. Still, telecommunications monitoring continues and it
is not restricted to specified telecommunications links. The complainants argue that
the action of the Federal Intelligence Service's "electronic vacuum cleaner," which
collects data from the air, cannot be delimited regionally and personally in the manner required by the Federal Constitutional Court's previous case-law. The recording
device also registers information about the subscriber lines that are used and thus,
the identity of those being monitored. § 3.2(3) of the G 10 Act explicitly allows the
search terms to contain identification characteristics which result in a targeted monitoring of certain telecommunications subscriber lines if the prerequisites for monitoring set forth in the provision are not met. This, according to the complainants, makes
it possible to monitor the subscriber line of the second complainant (2b) in a targeted
way.
The complainants argue that the Federal Constitutional Court has regarded strategic surveillance as permissible only under the condition that it is not misused for objectives that were not intended by the parliament. The complainants claim that, according to the Federal Constitutional Court, such unintended objectives include
monitoring individuals or monitoring to obtain information necessary for a timely
recognition of and response to threats to the internal security of the Federal Republic
of Germany. Such objectives, however, are pursued by the concept of strategic surveillance as revised by the Verbrechensbekämpfungsgesetz (1994 Fight against
Crime Act), and according to the complainants, surveillance takes place in a targeted
way in order to obtain intelligence for the objectives set forth in §§ 3.1(1) and 3.1(2) of
the G 10 Act.
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The complainants argue that while the 1994 Fight against Crime Act distinguishes
between the objective of strategic surveillance and internal security objectives when
obtaining intelligence, the use of the data is uniformly regulated in §§ 3.3-3.7 of the
G 10 Act. Consequently, § 3.2 of the G 10 Act (old version) has been set aside. Under this now abandoned regime it was, in principle, impermissible to use the data obtained for strategic surveillance objectives to the detriment of individuals. The complainants allege that the law is no longer based on the concept of a singular function,
but on the concept of obtaining and using the data for multiple purposes. This concept, however, has already been declared unconstitutional by the Federal Constitutional Court.
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As regards § 3.1 sent. 2 nos. 2 to 6 and §§ 3.3 -3.7 of the G 10 Act, the constitutional complaint is, according to the complainants, also well-founded. The regulations regarding the encroachment upon telecommunications privacy are not only applied in
the lead-up to criminal prosecution, but also in the lead-up to the resistance to threats
to internal security. The Federal parliament does not have the competence to pass
laws that seek to prevent the criminal offences set forth in § 3.3 of the G 10 Act as a
precaution against those threats during the lead-up phase. Moreover, encroachments
upon telecommunications privacy require, as a prerequisite, a concrete initial suspicion of a criminal offence or the evidence of a concrete threat and are only permissi-
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18/77