protect ... the existence or security of the Federation or of a Land." For this reason,
the Federal Chancellery as well as the Federal Ministry of the Interior, first believed
that an amendment of Article 10.2 of the Basic Law was required to permit the expanded authority to monitor telecommunications traffic. The complainants note that
the Committee on Legal Affairs of the Bundestag (German Parliament) concluded
that the determination of the tasks connected with the "importance from the security
policy point of view" set forth in § 1.2 of the BNDG also covers telecommunications
monitoring abroad by electronic means in the areas of terrorism, trade in arms and
drugs as well as money laundering. The objectives of § 1.2 of the BNDG, however,
are not identical to the constitutional concept of protecting "the existence or security
of the Federation or of a Land" in Article 10.2.2 of the Basic Law.
III.
Opinions regarding the constitutional complaints have been given by: (1) the Federal Minister of the Interior on behalf of the Federal government; (2) the government of
the Free State of Bavaria (a state of the Federal Republic of Germany); (3) the Federal Data Protection Commissioner; and (4) the data protection commissioners of the
Länder (states) Bavaria, Berlin, Brandenburg, Bremen, Hamburg, North RhineWestphalia, Saarland and Schleswig-Holstein.
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1. The Federal Minister of the Interior, who included a report by the President of the
Federal Intelligence Service with his opinion, regards the constitutional complaints as
inadmissible and in any case as unfounded.
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a) As regards the facts of the matter, the Federal Minister of the Interior explained
that monitoring measures pursuant to the amended § 3.1(2) of the G 10 Act have taken place since 1 March 1996. They are based on rules that specify the telecommunications links which should be subject to strategic surveillance. These rules determine
the states or crisis regions that are the starting-points or end-points of the surveyed
telecommunications links. Within this framework the specific orders restricting
telecommunications privacy and permitting monitoring are made. Essentially, the provisions contain the search concepts according to which the surveyed telecommunications contacts are selected. According to the Federal Minister of the Interior, everything has been done to reduce, to a minimum, the possibility that unrelated parties
become subjects of monitoring.
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The Federal Minister of the Interior explained that he has issued rules concerning
the threat of weapons proliferation (no. 3) which refer to telecommunications links between Europe and the states of the Near and the Middle East and also between Europe and the states of North Africa; rules regarding international terrorism (no. 2),
which are valid for the same area; rules concerning the drug trade (no. 4) for telecommunications links between Europe and Africa, South America, Central America and
Asia. On the basis of these rules, orders restricting telecommunications privacy issued for a limited time have been made regarding weapons proliferation in the narrower sense (i.e., of so-called A, B and C weapons) and trade in conventional arms
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