interests of the common good that rise above the interests that are protected by the
Basic Law. The new intended use of the data must refer to the missions and authorities of the agency to which the data is transferred, and its wording must respect the
principle of clarity. Moreover, the objective for which the data was originally collected
must not contradict the new objective being offered as the justification for the collection or use of the data (cf. BVerfGE 65, p. 1 [at pp. 51, 62]).
Assurance that the rule, which requires that all encroachments upon telecommunications privacy must be bound to a specific objective, is observed, can only be had if,
after the data has been screened, it can still be determined whether the data was collected by means of an encroachment upon telecommunications privacy. Therefore,
constitutional law requires that the data be marked accordingly.
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Moreover, Article 10 of the Basic Law stipulates that the holders of fundamental
rights are entitled to be informed of telecommunications monitoring that involved
them. This requirement ensures the effective protection of fundamental rights, as
without such notification, the monitored persons can neither claim that the screening
and monitoring of their telecommunications contacts were illegal, nor can they assert
possible rights regarding deletion or correction with respect to the collected data.
Such a claim is not, from the outset, restricted to the recourse to a court that follows
from Article 19.4 of the Basic Law. First of all, it is rather a specific right to data protection that can be asserted vis-à-vis the state agency that processes information and
data.
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The Basic Law does not prescribe in detail the manner in which the monitored person is to be informed. The Constitution only requires that the people being monitored
be notified in those cases where the data was collected secretly and the monitored
persons were not entitled to demand that they be informed of the monitoring, or if the
notification to which the monitored persons were entitled did not adequately take their
rights into account (cf. BVerfGE 30, p. 1 [at pp. 21, 31-32]). The duty to inform, however, is also subject to the reservation of Article 10.2 of the Basic Law. To the extent
that the encroachment upon telecommunications privacy cannot achieve its aim if the
monitored person is informed of the monitoring activity, it is not objectionable from the
constitutional point of view to restrict the notification that monitoring is taking place
accordingly. It may be sufficient to inform the monitored person about the encroachment after the fact (cf. BVerfGE 49, p. 329 [at pp. 342-343]).
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An encroachment upon telecommunications privacy can be imperceptible and the
subsequent act of processing the obtained data is unfathomable for the unsuspecting
subject of telecommunications monitoring; moreover, the possibility of restricting notification about an encroachment leads to gaps in legal protection. For these reasons,
Article 10 of the Basic Law requires that controls be incumbent on state agencies and
subsidiary agencies that are independent and not bound by instructions (cf. BVerfGE
30, p. 1 [at pp. 23-24, pp. 30-31]; BVerfGE 65, p. 1 [at p. 46]; BVerfGE 67, p. 157 [at
p. 185]). The Constitution, however, does not prescribe how these controls are to be
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