The examination made pursuant to �� 3.4 of the G 10 Act, which determines whether
the personal data obtained by telecommunications monitoring is required for the objectives which justify these measures, also constitutes an encroachment. This examination is an act of selection by which the recorded data is either submitted to further
use, stored for further use or destroyed.
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An encroachment upon the right to telecommunications privacy also occurs when
the Federal Intelligence Service, in the framework of its duty to inform the Federal
government, transfers personal data that it has obtained through telecommunications
monitoring. This transfer of the collected data expands the circle of those who know
of the acts of communication and can make use of this knowledge. The Federal Intelligence Service’s transfer of this recorded data to the receiving agencies, an act that
is regulated in § 3.5 and § 3.3 of the G 10 Act, constitutes an encroachment upon
telecommunication privacy, as does the further examination by the receiving agencies, which is regulated in § 3.7 of the G 10 Act.
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The limitation imposed by § 3.8(1) and § 3.8(2) of the G 10 Act on the duty to inform
the monitored person about the monitoring taking place also constitutes an encroachment upon the fundamental right to telecommunications privacy.
191
2. Moreover, the guarantee of the right of recourse to a court provided by Article
19.4 of the Basic Law is impaired by: (1) the limitation, contained in § 3.8(1) and
§ 3.8(2) of the G 10 Act, on the duty to inform the monitored person that monitoring
has taken place; and (2) the preclusion of the recourse to a court contained in § 9.6 of
the G 10 Act. Apart from that, the obligation to destroy personal data pursuant to
§§ 3.6, 3.7 and 7.4 of the G 10 Act can have a detrimental effect on the judicial review
of the measures.
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3. To the extent that measures ordered on the basis of §§ 1.1 and 3.1 of the G 10
Act also cover telecommunications links of press publishers or journalists, an impairment of the fundamental right of the freedom of the press also occurs as a result of:
(1) the authority to examine such acts of telecommunication that is conferred upon
the Federal Intelligence Service pursuant to § 3.4 of the G 10 Act; (2) the duty to inform the Federal government; (3) the authority to transfer data to other agencies pursuant to §§ 3.5 and 3.3 of the G 10 Act; and (4) the authority to examine the received
data conferred upon these agencies pursuant to § 3.7 of the G 10 Act.
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III.
The authority to monitor and record telecommunications traffic pursuant to § 1.1 and
§ 3.1 sent. 2 nos. 1-6 of the G 10 Act is, essentially, in accord with Article 10 of the
Basic Law. § 3.1 sent. 2 no. 5 of the G 10 Act is not, however, consistent with this fundamental right to the extent that this provision permits monitoring in order to gather intelligence that is necessary to be able to timely recognise counterfeiting committed
abroad and to counteract such a threat.
48/77
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