3. The Federal Data Protection Commissioner was of the opinion that strategic surveillance, also under the modified conditions, is consistent with the Basic Law because it does not serve to identify specific persons or subscriber lines. The Federal
Data Protection Commissioner suggests, however, that in order to ensure its conformity with the Basic Law it must be interpreted in such a way that the personal data obtained during the monitoring shall not be used for objectives set forth in § 3.3 of the
G 10 Act, as had been established as a principle in § 3.2(1) of the G 10 Act (old version). According to the Federal Data Protection Commissioner, the regulation is, in
principle, constitutional if this condition is fulfilled, as this condition prescribes procedural arrangements for the prevention of abuse.
124
The Federal Data Protection Commissioner, to the extent that the complainants
challenge § 3.2(3) of the G 10 Act, also has considerable reservations concerning the
constitutionality of the provision. The Federal Data Protection Commissioner noted
that Article 10 of the Basic Law is a human right and that the data obtained abroad is
processed on the domestic territory.
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The regulation set forth in § 3.3(2) of the G 10 Act in conjunction with § 12 of the
Bundesnachrichtendienstgesetz (BNDG, Federal Intelligence Service Act) is problematic from the point of view of constitutional law, in the view of the Federal Data
Protection Commissioner, because the regulation does not sufficiently determine the
objectives for which the data may be used. For the Federal Data Protection Commissioner it seemed contradictory that, on the one hand (pursuant to §§ 3.4 and 3.6 of
the G 10 Act), personal data is to be checked for its necessity and that it shall be destroyed or deleted if appropriate, while on the other hand, it should be transferred to
the Federal government in the framework of the duty to inform pursuant to § 3.3(2) of
the G 10 Act in conjunction with § 12 of the BNDG. The Federal Data Protection
Commissioner suggested that there is the danger that in practice, the duty to inform
will gain priority over the deletion of data which may be necessary.
126
The Federal Data Protection Commissioner also claimed that the restriction of
telecommunications privacy by the powers established in § 3.1 sent. 2 nos. 2-6 of the
G 10 Act raises concerns regarding the principle of proportionality.
127
Certainly, as can be seen from the legislative process and the associated materials,
the powers conferred to the Federal Intelligence Service do not constitute an expansion of its mission. The Federal Data Protection Commissioner argued, rather, that
the Federal Intelligence Service is granted the authority to conduct surveillance only
to the extent that such surveillance in specific circumstances is consistent with its
mission. Monitoring pursuant to § 3.1 of the G 10 Act that is independent of the existence of a suspicion must, however, be aimed at collecting pertinent information and
must, in particular, not result in circumventing the threshold for an encroachment upon fundamental rights in the case of monitoring of individuals based on suspicion.
Apart from that, the Federal Data Protection Commissioner claimed that an intelligence service investigation which serves police tasks in the lead-up to a criminal of-
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