the extent that the possibility of taking recourse to a court against measures taken
pursuant to § 3 of the G 10 Act is concerned, Article 19.4 of the Basic Law is relevant
as well. The same is true regarding the restrictions on the recourse to a court set forth
in § 9.6 of the G 10 Act. Apart from that, the constitutional complaints lodged by the
first of the two complainants bringing the second constitutional complaint and both
complainants bringing the third constitutional complaint are to be reviewed in accordance with the standards established in Article 5.1(2) of the Basic Law.
1. Article 10 of the Basic Law protects telecommunications privacy.
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a) Telecommunications privacy covers, first and foremost, the content of an act of
communication. Public authority is, in principle, not supposed to have the possibility
of obtaining knowledge about the content of the exchange of information and
thoughts, whether oral or written, that takes place via telecommunications equipment.
In this context, Article 10 of the Basic Law draws no distinction between communication of a private nature and other communication, e.g. business or political communication (cf. BVerfGE 67, p. 157 [at p. 172]). To the contrary, the protection of fundamental rights extends to all acts of communication that take place by means of
telecommunications technology.
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The protection of fundamental rights, however, is not restricted to shielding the content of an act of communication against the state taking note of it. The protection of
fundamental rights also covers the circumstances of communication, particularly including: (1) information about whether, when and how often telecommunications traffic has taken place or has been attempted; (2) information about the individuals between whom telecommunications traffic has taken place or has been attempted; and
(3) information about which subscriber lines have been used (cf. BVerfGE 67, p. 157
[at p. 172]; BVerfGE 85, p. 386 [at p. 396]). The state cannot, in principle, claim to be
allowed to take note of the circumstances of acts of communication. The use of the
medium of communication is supposed to remain confidential in all respects.
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By withdrawing, in principle, individual acts of communication from the state’s access, the fundamental right protecting telecommunications privacy intends to preserve the conditions of free telecommunication in general. The inviolability of
telecommunications privacy, as a fundamental right, seeks to avoid the following: that
the exchange of opinions and information by means of telecommunications equipment ceases altogether or is modified in its form and content because communication
partners expect the state: (1) to interfere with their communication; or (2) to take note
of the circumstances or the content of their communication.
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Apart from that, the freedom of the use of telecommunications that is safeguarded
by Article 10 of the Basic Law suffers if there is fear that the state utilises knowledge
about the circumstances and the contents of acts of telecommunication in other contexts to the detriment of the telecommunications partners (cf., altogether, BVerfGE
65, p. 1 [at pp. 42-43]; BVerfGE 93, p. 181 [at p. 188]). For these reasons, the protection provided by Article 10 of the Basic Law extends not only to the state taking note
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