Interior, of § 3.2(2) of the G 10 Act (old version). This means that the legal structure
of the G 10 Act has been preserved. The authority to transfer found in § 3.3 in conjunction with § 5 of the G 10 Act is based on the grounds set forth in § 3.1(2) of the
G 10 Act that permit orders restricting telecommunications privacy. According to the
Federal Minister of Interior, this means that nothing has changed in comparison to
the old legislation.
The Federal Minister of the Interior further argued that the standard for the review of
the constitutionality of the challenged regulations is the privacy of telecommunications enshrined in Article 10 of the Basic Law, which also provides protection against
the use and transfer of data that were obtained by an encroachment upon this fundamental right. The Federal Minister of the Interior argued, however, that the fundamental right of the freedom of the press is not relevant in this context. The G 10 Act itself
neither restricts the freedom of the press nor authorises such restrictions. It is certainly not impossible, but nevertheless rather remote, that telecommunications traffic associated with the field of journalism will be monitored with the help of the search concepts. To the extent that this should occur in exceptional cases, the use or transfer of
such data is only permitted pursuant to the narrow scope of powers provided by § 3.3
and § 3.5 of the G 10 Act. The Federal Minister of the Interior claimed that when the
law is applied in this respect, the meaning and scope of the freedom of the press must
be given due consideration.
102
The Federal Minister of the Interior argued that § 3.1 sent. 2 no. 1 of the G 10 Act,
which is challenged in the second constitutional complaint (1 BvR 2420/95), does not
violate Article 10 of the Basic Law. The constitutional complaint misjudges the continuing importance of the state's efforts to provide for the national defence. According to
the Federal Minister of the Interior, the constitutional complaint tries to deny the existence and even the possibility of a threatening situation as regards the national defence without being able to provide a reliable forecast in this respect. According to the
Federal Minister of the Interior, the power to perform strategic surveillance continues
to be meaningful and necessary even though the nature of threatening situations has
changed.
103
The Federal Minister of the Interior took the position that § 3.1 sent. 2 nos. 2-6 of the
G 10 Act and § 3.8 of the G 10 Act also do not violate the complainants' fundamental
right under Article 10 of the Basic Law. By issuing the challenged regulations, the parliament has fulfilled the constitutional obligations of Article 10.2(1) of the Basic Law
[which establishes that restrictions of the privacy of correspondence, posts and
telecommunications may only be ordered pursuant to a law].
104
The Federal Minister of the Interior argued that without changing the position and
the aims of the Federal Intelligence Service, the 1994 Fight against Crime Act has expanded the objectives that are served by the Federal Intelligence Service's surveillance as well as the powers of the Federal Intelligence Service itself. The aspects in
which the new objectives of encroachment exceed strategic surveillance as it existed
105
27/77