The Federal Minister of the Interior also claimed that the parliament, with § 3.3 of the
G 10 Act, has expanded within reasonable boundaries the catalogue of criminal offences for the prevention, resolution or prosecution of which the use personal data is
permitted. § 3.3 of the G 10 Act is supposed to assure that intelligence from the newly
added fields of monitoring can be used for the objectives set forth in § 3.3 of the G 10
Act. According to the Federal Minister of the Interior, the only real extension of this
provision consists in incorporating § 264 of the Strafgesetzbuch (Criminal Code) and
§ 92a of the Ausländergesetz (Aliens Act) into the catalogue. As concerns their legal
structure, § 3.1 of the G 10 Act makes reference to § 3.3 of the G 10 Act in the same
way that the previous § 3.1(2) of the G 10 Act (old version) made reference to § 3.2 of
the G 10 Act (old version).
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The Federal Minister of the Interior also noted that the authority to use personal data
for the prevention, resolution or prosecution of specified criminal offences, and to
transfer it to the responsible agencies if necessary, is contingent upon the existence
of tatsächliche Anhaltspunkte (factual grounds) for suspecting that someone is planning or committing or has committed one of the listed criminal offences. This is due to
the fact that the Federal Intelligence Office is not a police agency that is entitled to intervene in the case of concrete threats to the public safety and order. The Federal Intelligence Office is also not a crime prosecution agency that is authorised to act if specific facts substantiate the suspicion that a criminal offence exists. Therefore, the
Federal Minister of the Interior argued that the Federal Intelligence Service cannot be
allowed to evaluate and further use personal data only under the restrictive prerequisite that specific facts justify the suspicion that one of the listed criminal offences exists.
111
The Federal Minister of the Interior argued that § 100a of the Strafprozessordnung
(Code of Criminal Procedure) is not a suitable standard for evaluating the further use
and transfer of personal data. This provision only serves the fight to repress crime.
Expanded strategic surveillance, however, is supposed to facilitate the early detection of threats. This preventive aspect is taken up in § 3.3(1) of the G 10 Act as the
provision is primarily aimed at criminal offences that are still in the planning phase or
that are actually being committed at that respective moment. The fact that the further
use and transfer of gathered personal data primarily serves a preventive function also
becomes evident from the agencies that are entitled to receive data: the Verfassungsschutzbehörden (agencies entrusted with the protection of the Constitution),
the Militärischer Abschirmdienst (Military Counter-Intelligence Service), the Zollkriminalamt (Office of Criminal Investigation in Customs Matters), the Bundesausfuhramt
(Federal Export Authority) and the police. These agencies should receive personal
data primarily in order to prevent and combat imminent criminal offences.
112
The Federal Minister of the Interior asserted that even if there are only factual
grounds to suspect an imminent or continuing criminal offence, immediate transfer to
the police must be permissible because everything must be done at the earliest possible stage to prevent the commission of the criminal offence. Otherwise, it probably
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