ligence Service to make, with certain prerequisites, the intelligence gathered in the
framework of its mission available to other agencies for the fulfilment of their tasks
remains, in principle, unchanged. To respect the boundaries of competence, the parliament must assure, to the extent that it bases its regulations on Article 73 no. 1 of
the Basic Law, that the authorisations and the measures that are based on the various competencies still relate to the Federal Intelligence Service, and it must avoid
the situation in which the primary function is eclipsed by other possible uses. This is
done by: (1) determining the intended use in a sufficiently precise manner; (2) adequately binding the restriction of telecommunications privacy to a specified objective;
(3) defining authority in such a way that it is in line with the objective; and (4) providing measures of protection that are adequate in the context of a specified objective.
2. The regulations in § 1.1 and § 3.1 of the G 10 Act also fulfil the prerequisites laid
down by Article 10 of the Basic Law concerning the specificity and clarity of powers of
encroachments upon telecommunications traffic.
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In particular the parliament has determined, in a sufficiently specific and clear manner, the objectives for which telecommunications links may be monitored and for
which the intelligence thus gathered may be used. The threatening situations that are
supposed to be timely recognised by observation or monitoring are described precisely enough and are further specified by reference to other laws. The scope of monitoring is determined by its limitation to international wireless traffic. In view of the mission and the workings of intelligence services, it was not possible to further specify
the prerequisites that must exist for monitoring to take place.
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3. As regards substance, however, § 3.1 sent. 2 no. 5 of the G 10 Act disproportionately restricts telecommunications privacy. Apart from this, § 3.1(2) of the G 10 Act
complies with the requirements of the principle of proportionality.
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a) The objective of timely recognising and counteracting the threats specified under
numbers 1 to 6 of the provision is a legitimate interest of the common good. It is true
that the threats specified under nos. 2 to 6, which were newly incorporated into the
law, do not carry the same weight as the threat of an armed aggression, which has
from the outset been regarded as a legitimate reason for telecommunications monitoring (cf. BVerfGE 67, p. 157 [at p. 178]). Whereas such an aggression jeopardises
the existence of the state, the well-being of the population and the freely chosen liberal order of the state, the newly incorporated threats, as a general rule, do not affect
the existence of the state or its order in the same fundamental manner. They do, however, concern high-ranking public interests whose violation would result in serious
damage to external and internal peace and to the legal interests of individuals, albeit
to different degrees.
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b) Telecommunications monitoring on the basis of § 3.1 of the G 10 Act is suitable
for achieving the objective of the law.
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The wide range of screening, which only in comparatively few cases is likely to yield
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