operation between the receiving installations in the uplink and in the downlink areas.
These circumstances lead to the result that in the case of satellites with a bundled
coverage area, only limited parts of an individual act of telecommunication can be
screened and that contributions by both communication partners are only recorded
by older satellites with a wide coverage zone.
Other limitations on the monitoring permitted by the challenged regulations result
from the fact that, in order to initiate telecommunications monitoring it is necessary to
determine the specific links and establish the monitoring thereof by specific orders.
Furthermore, restrictions on telecommunications privacy resulting from monitoring
will only occur if the threatening situation is sufficiently established by the Federal Intelligence Service and, in view of the Federal Intelligence Service's limited capacities,
sufficient results are expected. It has become apparent in practice that considerations
like limited resources and utility actually achieve a limiting effect: the orders concerning the areas of threat of international terrorism and drug trade, have, pursuant to
§ 5.3(2) of the G 10 Act not been renewed due to the poor results of the monitoring.
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On the other hand, the assumptions that formed the basis of the Federal Constitutional Court’s 1984 decision, which found the weight of the impairment of fundamental rights arising out of telecommunications monitoring to be relatively low (BVerfGE
67, P. 157), are no longer valid. In that decision the Federal Constitutional Court proceeded on the assumption that the determination of telecommunications links and the
ordering of restrictions on the privacy of telecommunications traffic issued after consultation with the parliamentary panel, as required by law, would result in a strong geographic restriction of the monitored areas and to a strong restriction of the monitored
routes (cf. BVerfG, loc. cit., p. 174). Strategic surveillance was regarded as proportional, as the Court claimed that: (1) it serves an especially important objective, i.e.
the prevention of an armed aggression against the Federal Republic of Germany; (2)
there is very little probability that an individual will become the subject of surveillance;
and (3) that surveillance places only a minor burden on the individual due to the fact
that anonymity of the communication partners is, in principle, assured (cf. BVerfG,
loc. cit., pp. 178-179).
226
Certainly, telecommunications monitoring pursuant to § 3.1 and § 5.1 of the G 10
Act is still to be determined and ordered by the responsible Federal minister and requires approval by the parliamentary panel established pursuant to § 9 of the G 10
Act. The change of the factual and legal framework conditions has, however, considerably diminished the limiting effect these procedures can be expected to have on the
encroachments on telecommunications privacy that are permitted by the challenged
regulations. As long as strategic surveillance of telecommunications, as based on the
original version of the G 10 Act, only referred to the threat of an armed aggression
against the Federal Republic of Germany and as long as, according to political analysis, such an aggression only emanated from the Eastern Block, surveillance was restricted to the countries of the Warsaw Pact. Moreover, an order for monitoring under
the previous regime, under the existing technical conditions, always referred to indi-
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56/77