limitations on the applicability of the fundamental rights abroad allow the conclusion
that telecommunications surveillance performed by the Federal Intelligence Service
pursuant to § 3 of the G 10 Act does not fall under the provisions of Article 10 of the
Basic Law to the extent that the surveillance covers telecommunications traffic within
foreign countries. The applicability of the Basic Law is restricted to the German territory. Notwithstanding this rule, the fundamental rights also bind German state power
to the extent that this power becomes effective abroad by virtue of international law
or on account of a special permission by the foreign territorial state in question; and
to the extent that the encroachment is based on the territorial sovereignty or the personal sovereignty of Germany. However, effects resulting from the exercise of German state power abroad that can neither be derived from territorial sovereignty nor
from personal sovereignty cannot be resisted by invoking the fundamental rights enshrined in the Basic Law.
The Federal Minister of the Interior argued that the challenge raised by the second
constitutional complaint (1 BvR 2420/95), which claims that § 3.1 sent. 2 no. 1 and
that § 9.6 of the G 10 Act encroach upon fundamental rights, has been lodged too
late.
95
bb) In any case, the constitutional complaints are, according to the Federal Minister
of the Interior, unfounded.
96
The Federal Minister of the Interior explained in his submission that the legislative
power of the Federal Republic flows from Article 73 no. 1 of the Basic Law. The competence for foreign affairs includes the competence to establish an intelligence service, to the extent that such a service becomes active abroad or its activities are directed towards foreign countries. The reference to foreign countries is assured in the
1994 Fight against Crime Act. § 1.1 no. 2 of the G 10 Act explicitly restricts the competencies to monitor and record telecommunications traffic pursuant to § 3.1 sent. 2
nos. 2-6 of the G 10 Act to the structure of tasks of the Federal Intelligence Service
set forth in § 1.2 of the Federal Intelligence Service Act. Accordingly, the authority to
monitor telecommunications traffic in § 3.1(2) of the G 10 Act refers to international
telecommunications links. Based on the international character of the threats set forth
under nos. 2, 3 and 6, and on account of the acts of aggression set forth under nos. 4
and 5 (which must originate or be committed in foreign countries) the Federal Minister
of the Interior concludes that the new grounds restricting telecommunications privacy
that are outlined in § 3.1 of the G 10 Act show the required factual reference to the
authority conferred to the Federal Republic by Article 73 no. 1 of the Basic Law.
97
The Federal Minister of the Interior took the position that the provisions of the 1994
Fight against Crime Act do not confer any authority to the Federal Intelligence Service
that is exclusively reserved by the Basic Law for the domestic police agencies. In this
context, it need not be decided whether the Basic Law contains a constitutional principle that requires the separation between the police and the (domestic) intelligence
services. In any case, the Federal Minister of the Interior asserted that the standards
98
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