differentiation may be permissible or required, depending on the relevant rules of
constitutional law (cf. BVerfGE 31, p. 58 [at pp. 72 et seq.]; BVerfGE 92, p. 26 [at
pp. 41-42]).
The protection of telecommunications privacy provided by Article 10 of the Basic
Law, in accordance with the provisions of international law (cf. Article 12 of the Universal Declaration of Human Rights of 10 December 1948; Article 8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950; in this context, cf. EGMR [Entscheidungen des Europäischen Gerichtshofs für Menschenrechte, Decisions of the European Court of Human Rights], NJW
[Neue Juristische Wochenschrift] 1979, p. 1755 [at p. 1756]), aims at assuring that
telecommunications remain free of undesired or unnoticed monitoring and that the
holders of fundamental rights can communicate in an unhindered way. The protection
of telecommunications privacy relates to the medium of communication itself and intends to counteract the threats to confidentiality that result precisely from the use of
this medium, which is more likely to be the object of encroachment by the state than
direct communication between partners who are physically present (cf. BVerfGE 85,
p. 386 [at p. 396]. Modern technology, like satellite and microwave technology, permits access to foreign telecommunications traffic by means of monitoring equipment
that is located on the territory of the Federal Republic of Germany.
175
The screening and recording of telecommunications traffic with the help of the Federal Intelligence Service's reception equipment located on German soil already establishes a technical and informational relation to the respective participants in an act
of communication and, depending on the particular characteristics of data and information, establishes a contact to a specific territory. The evaluation, by the Federal Intelligence Service, of the acts of telecommunication that were screened in this way
takes place on German soil. Under these circumstances, an act of communication
abroad is linked with the action of the state on the domestic territory in such a way
that the fundamental rights pursuant to Article 10 of the Basic Law are binding even if
it must be supposed, for this binding effect to apply, that the territorial reference must
be sufficiently close. Secret service activities that do not fall under the G 10 Act are
not to be decided in this context, nor is the question of the legal situation of foreign
communication partners abroad. In any event, pursuant to Article 19.3 of the Basic
Law, Article 10 of the Basic Law does not apply to foreign legal entities.
176
2. Parts of the challenged regulations are also to be reviewed applying the standards of Article 19.4 of the Basic Law.
177
Article 19.4 of the Basic Law establishes the citizen's right to effective judicial review
in cases in which it seems possible that their rights have been violated by acts of state
power (by the German authorities). In Article 10.2(2) of, however, the Basic Law
makes an exception to this guarantee exclusively with respect to encroachments upon telecommunications privacy. Pursuant to Article 19.4(3) of the Basic Law, this exception is unaffected by the otherwise comprehensive guarantee of legal protection
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