fence also contradicts the separation of competencies between the police and the
secret services established by constitutional law.
In the opinion of the Federal Data Protection Commissioner, the quantitative dimension of the permitted encroachments upon the right to telecommunications privacy
makes the justification, which invokes prevailing interests of the common good, also
seem doubtful. Apart from that, the actual extent of ordered encroachments upon fundamental rights remains almost undefined from the normative point of view and is, essentially, only subject to limitations on the Federal Intelligence Service's resources
and staff.
129
The Federal Data Protection Commissioner argues that for the weighing of the monitored persons' interests, it must certainly be assumed that the participants of an act
of communication can be identified. The additional powers for collecting data are,
however, not aimed at subsequent encroachments related to specific individuals for
the objective of resistance to a threat but are aimed at a pertinent analysis of the situation in order to devise a foreign-policy counter strategy. The restriction of telecommunications privacy required for this analysis has already been correctly described by
the Federal Constitutional Court as a "relatively minor burden placed on the individual
and, as such, a low-intensity encroachment upon a fundamental right". The Federal
Data Protection Commissioner concludes that the awareness of such a use taking
place, which is anonymous in its objective, will hardly result in uncertainties in the exercise of fundamental rights.
130
Under the aspect of the general interest which is to be weighed against this, the
Federal Data Protection Commissioner noted that it is important that the respective
powers are vested in the Federal Intelligence Service only in the framework of its mission. In accordance with the definition of its mission, it is not sufficient that individual
legal interests in the field of internal security are jeopardised because the matter in
question must constitute a serious threat to the security or the existence of the Federal Republic of Germany in its entirety. The grounds which justify the forecast that a
danger threatens the state must be put forward and substantiated in the reasoning of
the application, and they are subject to an examination by the responsible Federal
minister, by the parliamentary panel and by the commission established pursuant to
§ 9 of the G 10 Act.
131
The Federal Data Protection Commissioner took the position that § 3.4 of the G 10
Act is constitutional, provided that it does not allow a targeted evaluation for the objectives of secondary use permitted by § 3.3 of the G 10 Act.
132
The Federal Data Protection Commissioner took the position that § 3.5 in conjunction with § 3.3 of the G 10 Act violates the principle of proportionality to the extent that
the power to change the objective set forth in § 3.3 of the G 10 Act leads to the result
that investigations that are carried out independently of the existence of a suspicion,
by means of collecting "incidental information" in a targeted way, indirectly circumvent
the suspicion-related criminal offence element prerequisites that are required for indi-
133
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