(Gesetz zu Artikel 10) (G 10) (Act on the Restriction of the Secrecy of Mail, Posts
and Telecommunications; Act referring to Article 10 of the Basic Law; the G 10 Act)
of 13 August 1968 (BGBl I, p. 949) came into force after Article 10 of the Basic Law
was amended, in the wake of the constitutionally permissible measures arising out of
a state of emergency (Siebzehntes Gesetz zur Ergänzung des Grundgesetzes [Seventeenth Act to amend the Basic Law] of 24 June 1968, BGBl I, p. 709), and from
the outset provided for the possibility of monitoring telecommunications (§ 1). Monitoring was permissible in two forms: “Monitoring of Individuals” and “Strategic Surveillance.” § 2 of the G 10 Act regulated the monitoring of individuals. According to
§ 2 of the G 10 Act, monitoring individuals was permissible if there were grounds to
suspect that someone planned, was committing or had committed specified, especially serious criminal offences that threatened the existence of the Federal Republic
of Germany or its democratic order. § 3 of the G 10 Act regulated the so-called strategic surveillance which served in particular to compile situation reports on the state of
certain dangers threatening the Federal Republic of Germany.
The present proceedings are exclusively concerned with strategic surveillance.
Originally, strategic surveillance was only permissible, pursuant to § 3.1(2) of the
G 10 Act (old version), to ensure the early detection of armed aggression aimed at
the Federal Republic of Germany and to avert such aggression. Strategic surveillance was therefore geographically restricted to territories from which a risk of war
emanated. Pursuant to § 3.1(1) of the G 10 Act (old version), these areas were determined by the responsible Federal Minister with the approval of a panel, created by
§ 9.1 of the G 10 Act, consisting of members of the Bundestag (the German Parliament). Pursuant to § 5.1-§ 5.3 of the G 10 Act (old version), the minister was also responsible for determining which specific telecommunications traffic links were subject
to monitoring and the attending restriction on the right to telecommunications privacy.
In this context, a telecommunications traffic link was understood to be the scheduled
telecommunications traffic which takes place in both directions between two specified
ports in a network such as a collective cable system between two secondary telecommunications exchanges that crosses a border. Such collective cable systems were
normally designated by a specific identification number (cf. BVerfGE [Decisions of the
Federal Constitutional Court] 67, p. 157 [at p. 174]). Pursuant to § 9.2(2) of the G 10
Act (old version), the G 10 Commission decided whether monitoring was necessary
and permissible.
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An essential feature of the monitoring permitted pursuant to § 3 of the G 10 Act (old
version) was that it was not aimed at individuals (nor was this possible, for technical
reasons) but served to obtain non-personal intelligence to provide the Federal government with information concerning foreign and defence policy issues. To the extent
that strategic surveillance resulted in the collection of personal data, e.g. due to the
fact that the communications partners themselves disclosed their identities, such personal data, pursuant to § 3.2(1) of the G 10 Act (old version), could not be used to the
detriment of the subjects of monitoring. The law provided two exceptions to this rule.
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