also independently taken into consideration by an institution that is not bound by instructions from agencies concerned with, and that is not involved in, security policy
interests. Procedural arrangements that make it possible for the institution charged
with the responsibility of controlling data protection to effectively control, at least subsequently, the decision to change the objective of monitoring, which is of special importance, at a minimum require that a record is kept of the decision and that organisational measures are taken which facilitate targeted access to this evidence.
According to the Federal Data Protection Commissioner, the restriction of information set forth in § 3.8(2) of the G 10 Act is consistent with the Basic Law only to the extent that it does not impair the monitored person's possibilities for legal protection provided by the right of recourse to a court. This is the case only if a need for legal
protection is already precluded for abstract considerations. At most, this is the case if
the collection and the use of data occurs without any reference whatsoever to the person being monitored. This threshold is passed in any case if the Federal Intelligence
Service stores the data by means of technical equipment in such a way that evaluation that is related to individuals is possible or if it transfers them to the security agencies specified in § 3.5 of the G 10 Act in a manner that establishes a direct relation to
those being monitored. To the extent that the data has been used in a manner that is
directly related to the subject of the monitoring, notification must take place. The Federal Data Protection Commissioner concluded that in this respect, § 3.8(2) of the
G 10 Act is unconstitutional.
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As concerns the fact that recourse to a court is, pursuant to § 9.6 of the G 10 Act,
precluded in the case of strategic telecommunications monitoring, the Federal Data
Protection Commissioner argues that the guaranteed recourse to a court established
by Article 19.4 of the Basic Law is not subject to a legal regulation. However, strategic
telecommunications surveillance, when interpreted in conformity with the Constitution, is not aimed at specific individuals in spite of the fact that the technical possibility
of establishing references to individuals has increased considerably. Recourse to a
court, pursuant to § 5.5(3) of the G 10 Act must be possible in the event that, contrary
to the originally determined objective, a reference to individuals has been established
as an incidental result.
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4. A majority of the data protection commissioners of the Länder (states) who gave
their opinions on the constitutional complaints expressed constitutional reservations,
albeit with different focuses, as regards the challenged regulations. Only the Bavarian
Data Protection Commissioner considered the Act to be consistent with the Basic
Law when interpreted in conformity with the Constitution. Nevertheless, the Bavarian
Data Protection Commissioner argued that an initial suspicion is not a sufficient reason for the transfer of personal data pursuant to § 3.5 of the G 10 Act. Only in the
case of the existence of qualified grounds for suspicion may data be transferred to
other agencies. Apart from that, seamless control must be ensured. To achieve this,
the powers of the commission and of the data protection commissioners must be determined in a precise way and must be co-ordinated.
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