dd) In a weighing of interests that takes these aspects into consideration, § 3.1 sent.
2 nos. 1-4 and no. 6 of the G 10 Act are not objectionable from the constitutional point
of view.
239
Contrary to the opinion of the complainant bringing the first constitutional complaint,
the authority to monitor and record, and the other measures provided by the challenged Act is not out of proportion simply because it lacks intervention thresholds like
the traditional concepts of konkrete Gefahr (specific threat) in the field of resistance to
threats and of hinreichender Tatverdacht (reasonable grounds for the suspicion of a
criminal act) in the field of criminal prosecution. Certainly, telecommunications monitoring is conducted without an existing suspicion. Neither is the encroachment upon
fundamental rights limited to the general risk that the individual may become the subject of an unjustified suspicion. In the framework of determining and ordering restrictions to telecommunications privacy, anyone can easily become the object of monitoring measures.
240
The different aims, however, justify that the prerequisites for encroachments on
telecommunications privacy are determined differently in the G 10 Act than in police
law and law of criminal procedure. On account of the legislative power of the Federal
Republic of Germany flowing from Article 73 no. 1 of the Basic Law, the only possible
aim of monitoring by the Federal Intelligence Service is foreign surveillance with respect to specified threatening situations that are relevant to foreign and security policy. This type of surveillance shows the following characteristics: (1) it is concerned
with the external security of the Federal Republic of Germany; (2) its subject is threatening situations that originate abroad, not predominantly threatening situations and
suspected threats that are related to individuals; and (3) intelligence in this respect
can only to a limited extent be obtained by other means. In this context, the Federal
Intelligence Service's sole mission is to collect and evaluate the information required
for obtaining intelligence about foreign countries that are of importance for the foreign
and security policy of the Federal Republic of Germany, and, on account of its duty to
inform the Federal government, to provide it with information to support it in its decisions.
241
It is true that even the considerable threats, which telecommunications monitoring is
supposed to counteract, would not justify, from the constitutional point of view,
telecommunications monitoring for objectives of foreign surveillance without any prerequisites or limitations. The law, however, has not dispensed with such prerequisites. §§3.1(1) and 3.1(2) of the G 10 Act contain specified substantive standards and
procedural safeguards, chiefly that monitoring is only permissible for collecting information about issues the knowledge of which is necessary for the timely recognition of
the threatening situations. Under the procedural aspect, one of the prerequisites of
the determination and ordering of monitoring is that the Federal Intelligence Service,
in its application, conclusively establishes why the affected telecommunications links
can provide, in a timely manner, information about one of the relevant threats.
242
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