In their opinions, the other data protection commissioners criticised, inter alia, that
the Act has expanded the Federal Intelligence Service's mission in an unconstitutional manner. They argued that the law involves the Federal Intelligence Service in tasks
concerned with crime prevention and prosecution, thus employing it for internal security objectives. This violates the principle of separation between the secret services
and the police. In view of the imbalance between efforts and return and in view of the
possibility of effectively encrypting telecommunications contacts, it is doubtful
whether the powers that the Act confers to the Federal Intelligence Service are suitable and required. Nor are the powers of encroachment upon fundamental rights proportional in the strict sense of the word. On the one hand, the threatening situations
that justify monitoring measures which have been newly incorporated into the Act carry far less weight than the threat of an armed aggression. On the other hand, the restrictions of fundamental rights in this context are considerable from the quantitative
as well as from the qualitative point of view. The permission to screen foreign subscriber lines in a targeted manner goes beyond what is permissible from the constitutional point of view.
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The data protection commissioners of the Länder, with the exception of the Bavarian
Data Protection Commissioner, argued that the challenged regulations also do not
determine the objectives for which the personal data obtained by means of telecommunications monitoring may be used; in particular, the regulations do not bind the use
of the data strictly enough to specified objectives. The level of suspicion which justifies the transfer of the data to other agencies is too low. There are better ways for protecting the anonymity of the subjects of monitoring. Almost all of the opinions presented cast doubts on the Act’s preclusion or limitation of the duty to inform, some also
express reservations about precluding the recourse to a court. All the data protection
commissioners regarded their possibilities for control as insufficient.
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IV.
At the oral argument, opinions were given by: the complainants, the Federal government, the Federal Intelligence Service, the Federal Data Protection Commissioner,
the data protection commissioners of the Länder (states) Berlin and Hamburg, the
G 10 parliamentary panel, the G 10 Commission, and by the independent, courtappointed experts Professor Dr. Pfitzmann, Professor Dr. Waibel and Professor Dr.
Wiesbeck.
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B.
With the exception of the constitutional complaint lodged by the second of the two
complainants bringing the second constitutional complaint (1 BvR 2420/95), the constitutional complaints are admissible.
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I.
Only someone who is personally, presently and directly affected by the challenged
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