This leads to the conclusion that the question whether monitoring for the objective of
early recognition of the respective threats fails due to the use of encryption technologies cannot, at least according to the present state of knowledge, be answered on an
abstract level but only on account of practical experience. On the legal level, the permitted measures are not unsuitable from the outset. On the level of implementation,
the Federal Intelligence Service and the supervisory bodies that are involved pursuant to the procedural arrangements are to ensure that in spite of the possibility of
encryption, the suitability of the measures in the areas of threat that are the subject of
an order restricting telecommunications privacy is maintained.
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c) The law is necessary for achieving its aims. There are no means available that
are equally effective, which less significantly impair the holders of fundamental rights.
In particular, the possibility of co-operation with the states in which the sources of the
threats arise is not equally promising. This is, on the one hand, due to the fact that cooperation requires previous knowledge about relevant facts. On the other hand, this
is due to the fact that in many cases the threats are caused or condoned by government authorities abroad.
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d) The restrictions on the right to privacy in telecommunication traffic instituted pursuant to § 1.1 and § 3.1 of the G 10 Act (screening, recording, storage, comparison)
are, in essence, proportional in the narrower sense. Only restrictions instituted for the
objective of recognising counterfeiting committed abroad (no. 5) fail to meet this requirement.
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aa) The principle of proportionality requires that a loss of the freedom that is protected by the Basic Law is not disproportionate to the objectives of public interest that are
served by the restriction of the fundamental right in question. Due to the fact that the
individual is integrated in the community and depends on the community, the individual must tolerate restrictions of his or her fundamental rights if they are justified by
prevailing public interests (cf. e.g. BVerfGE 65, p. 1 [at p. 44] with further references).
The parliament must, however, achieve an adequate balance between public interests and the interests of the individual. In this context, the important questions with respect to the fundamental rights of the individual are: (1) under what circumstances
are which and how many holders of fundamental rights subject to impairments; and
(2) what is the degree of intensity of these impairments? The standards for determining this include: (1) which thresholds for intervention have been created; (2) the number of persons affected; and (3) the intensity of the impairments. The intensity of the
impairment, in turn, depends on: (1) whether the communication partners' identities
remain anonymous; (2) which calls and (3) which contents can be screened (cf. e.g.,
on the basis of the standard of Article 2.1 of the Basic Law in conjunction with Article
1.1 of the Basic Law, BVerfGE 34, p. 238 [at p. 247]); and (4) what disadvantages
threaten, or are justly feared by, the holders of fundamental rights on account of the
monitoring measures. On the other hand lie the considerations of the public interests,
as determined by the weight of the aims and interests served by the telecommunications monitoring. The decisive factors in this context are, inter alia: (1) how great are
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