promoted by the supporters of such a constitutional principle of separation are not
violated. No organisational and institutional link between the Federal Intelligence Service and police agencies is established. No authority to encroach upon telecommunications privacy rights, which have been reserved for the police, have been conferred
to the Federal Intelligence Service. The authority is, also in the framework of the monitoring objectives pursuant to § 3.1 sent. 2 nos. 2-6 of the G 10 Act, restricted to surveillance as regards foreign countries with intelligence service aims.
The Federal Minister of the Interior argued that the principle of separation between
police and intelligence services is not circumvented by the obligation to transfer, pursuant to § 3.5 of the G 10 Act, the data that was obtained in accordance with § 3.1 of
the G 10 Act. No general prohibition on co-operation and on the interchange of information can be inferred from the principle of separation. The objective of the separation is to prevent the combination of the intelligence services' knowledge, which goes
far beyond the knowledge required by the police for the resistance of threats and for
criminal prosecution, with the authority of the police. The Federal Minister of the Interior contends that the barriers resulting from this have been carefully observed when
the provisions concerning data transfer were amended by §§ 3.3-3.5 of the G 10 Act.
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The Federal Minister of the Interior claimed that the transfer of data takes place within the framework of the legal authority of the Federal Intelligence Service, and its prerequisite is a suspicion that is comparable, as regards the required degree of suspicion, to the initial suspicion under the terms of § 152.2 and § 160.1
Strafprozessordnung (StPO, Code of Criminal Procedure) and to the suspicion that is
required for the undercover use of technical devices pursuant to the police laws of the
Länder (states), and which goes beyond the required suspicion to the extent that it
must refer to specific criminal offences. The Federal Minister of the Interior argued,
however, that the principle of separation does not require that the Federal Intelligence
Service transfer data to an agency of criminal prosecution only in cases in which the
requirements for an order pursuant to § 100a of the Code of Criminal Procedure are
fulfilled. The function of § 100a of the Code of Criminal Procedure is completely different from the principle of separation. § 100a deals with the question: under which preconditions may an encroachment upon telecommunications privacy take place for the
objective of collecting evidence for a criminal procedure. The principle of separation,
however, concerns the question of the required prerequisites that would allow information obtained by means of a (permissible) encroachment that has already taken
place, to be used for objectives related to criminal proceedings or crime prevention.
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The Federal Minister of the Interior asserted that the expansion of the grounds justifying orders restricting telecommunications privacy pursuant to § 3.1 sent. 2 nos. 2-6
of the G 10 Act has only changed: (1) the extent to which data may be obtained; and
(2) part of the elements of a criminal offence that justify transfer pursuant to § 3.3 of
the G 10 Act. The elements of a criminal offence partly correspond with the expanded
grounds for orders restricting telecommunications privacy. To the extent that such
parallels do not exist, this was already true, according to the Federal Minister of the
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