ble as a last resort.
Moreover, the complainants claim that the regulation set forth in § 3.3(2) of the G 10
Act in conjunction with § 12 of the Gesetz über den Bundesnachrichtendienst
(BNDG, Federal Intelligence Service Act) is unconstitutional. It permits the transfer of
collected data to the identified authorities without any restriction concerning the objectives to which these authorities are allowed to receive and use the transferred information. The only certainty is that these objectives are added to the ones set forth in
§ 3.3(1) of the G 10 Act. The complainants argue that it cannot be inferred from the
Federal Intelligence Service Act that there is a restriction of objectives for which the
transferred data may be used. This applies to § 12 of the Federal Intelligence Service
Act as well as to § 1.2 of the Federal Intelligence Service Act. The latter assigns the
Federal Intelligence Service the task of obtaining and evaluating intelligence which is
important for foreign and security policy for the Federal Republic of Germany. In the
opinion of the complainants such a regulation does not meet the requirements of the
constitutional principle of clarity.
70
The complainants argue that § 3.5 of the G 10 Act is unconstitutional because the
Basic Law prohibits the delegation of police functions, i.e. criminal prosecution or discovering and resisting threats, to the agencies concerned with the protection of the
Constitution, which are mentioned in Article 73 no. 10b and Article 87.1(2) of the Basic Law.
71
The complainants allege that §§ 3.6 and 3.7 as well as § 7.4 of the G 10 Act violate
Article 19.4 of the Basic Law. These sections of the Act violate the right to informational self-determination, and the essential content of this right, established by Article
2.1 in conjunction with Article 1.1 of the Basic Law. According to the interpretation the
complainants give the statute, if a public agency no longer needs data that it has obtained and wants to destroy it, this agency must put the data at the disposal of the
subjects of telecommunications monitoring and, at this point in time at the latest, the
agency must inform the subjects of monitoring about the encroachments upon their
informational rights in order to allow the subjects of monitoring, at least at that point in
time, to defend their rights and, should the need for this arise, to seek recourse to a
court. Therefore, the destruction of data is only permissible if those about whom data
has been collected have consented to the encroachment upon their informational
rights that this destruction of data constitutes. If this consent is not given, the complainants argue, the data must be handed over to the subjects of telecommunications
monitoring.
72
The complainants argue that, for the same reasons, it is unconstitutional that § 3.8
of the G 10 Act contains no obligation to inform the subjects of telecommunications
monitoring that such monitoring has taken place. Any doubt the agencies might have
whether notifying would jeopardise the objective of the monitoring or of the use of the
data is recognised as legitimate by the law. This is due to an erroneous balancing of
the opposed legal interests. The regulation of § 3.8(2) of the G 10 Act gives greater
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19/77