information, is no argument against suitability. On the legal level, it is sufficient if there
is an abstract possibility that the permitted measures achieve the intended objective,
i.e. if the measures are not unsuitable from the outset but may contribute to the desired success (cf. BVerfGE 90, p. 145 [at p. 172]). This is the case here.
The requirement of suitability is also sufficiently taken into account on the level of
implementation. On the one hand, monitoring takes place in a series of procedural
steps that, by rendering the measures more specific, may promote their suitability.
The determination of specific telecommunications links and the ordering of restrictions on the privacy of telecommunications links are meant to establish a framework
that delimits the monitoring measures. The monitoring measures take place in regulated procedures, the elements of which comprise, in particular: (1) the application by
the Federal Intelligence Service (§§ 4.2 no. 2 and 4.3 of the G 10 Act), which requires
a statement of reasons; (2) the determination of the search concepts, which according to the text of the law must be suitable for achieving the aims of telecommunications monitoring (§ 3.2[1] of the G 10 Act); and (3) (previous) supervision by the panel
of parliamentarians and the G 10 Commission (§ 3.1[1], § 9.2 of the G 10 Act). On the
other hand, monitoring is subject to subsequent control by the G 10 Commission,
which is established pursuant to § 9 of the G 10 Act. The panel of parliamentarians
established pursuant to § 9.1 of the G 10 Act is to be informed by the Federal Minister
of the Interior, at intervals not greater than six months, about the state of implementation of the law.
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The suitability of monitoring measures is not called into question by the fact that it is
possible to encrypt messages. Certainly, as the independent, court-appointed expert
Professor Dr. Pfitzmann pointed out in the oral argument, it is possible to acquire, at
low prices, encryption technologies that effectively shield the content of communication against any third party taking note of it; if steganographic methods are used, it is
not even possible to recognise that the communication is encrypted. For the use of
encryption technologies, however, it is necessary that both sender and receiver have
the key at their disposal. As a general rule, this is only the case if sender and receiver
have a permanent relation. Normally, the use of these technologies is not considered
if business relations are initiated or if the contact is only sporadic.
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In some of the listed areas of threat, however, it is likely that exactly the individuals
or organisations that are the targets of monitoring are, due to their high degree of organisation and their use of modern infrastructure, in a position to evade telecommunications monitoring whereas unsuspected individuals who cannot make use of encryption technologies (as is the case with journalists, in view of their working conditions)
become subjects of monitoring. The Federal Intelligence Service itself has stated that
the poor results of monitoring in the areas of international terrorism and drug trade
can, inter alia, be explained by the use of code words. In the oral argument the Federal government countered the objection that monitoring is unsuitable by stating that
practical experience had shown that only relatively few of the screened telecommunications links were encrypted.
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