Taking into account the safeguards provided in the G 10 Act, screening and recording for the objective of informing the Federal government do not appear to be disproportionate. Certainly, the number of screened telecommunications links is not low, it
is low, however, compared with the total number of telecommunications contacts, or
even in comparison only with the number of international telecommunications contacts. In this context, the ban on targeted monitoring of specified individual subscriber
lines contained in § 3.2(2) of the G 10 Act is of great importance. In view of the fact
that encroachments on telecommunications privacy are implemented without the existence of a suspicion, in view of the broad range of screened telecommunications
contacts and of the possibility of identifying the participants in a telecommunications
contact, proportionality would not be ensured without such a ban. The Federal Constitutional Court is not called upon to review the constitutionality of § 3.2(3) of the
G 10 Act because the complainants who have lodged admissible constitutional complaints are not affected by this regulation. Even if free communication, which Article
10 of the Basic Law is supposed to ensure, may be disturbed by the screening and
recording of acts of telecommunication, the danger of disturbing it gains its full significance only through subsequent evaluation and especially by the transfer of the gathered information. In this respect, however, it can be adequately counteracted on the
level of the authority to evaluate and transfer.
243
ee) Proportionality in the narrower sense is not ensured, however, with respect to
the threat of counterfeiting committed abroad, which is listed under no. 5 of the regulation.
244
Counterfeiting is neither a threat the seriousness of which is comparable to the
threat of armed aggression, nor does it concern legal interests that are as important
as the other threats incorporated into § 3 of the G 10 Act by the 1994 Fight against
Crime Act. Counterfeiting also does not show, in all its forms of perpetration, the
same potential for danger that characterises the other threats. Counterfeiting neither
constitutes a threat to the existence or the safety of the Federal Republic of Germany
that is necessarily connected with foreign countries nor is it necessarily a considerable threat to the existence or the safety of the Federal Republic of Germany. This
does not preclude that in individual cases, large-scale counterfeiting committed
abroad impairs the Federal Republic of Germany's monetary stability, and thus its
economic performance, to a degree that is comparable to the other threats. The provision, however, is not limited to such cases. With respect to the threat posed by
counterfeiting generally, the degree of the threat and the weight of the impairment of
fundamental rights is out of proportion.
245
By incorporating respective limitations, however, § 3.1 sent. 2 no. 5 of the G 10 Act
can be given a wording that is consistent with the Basic Law. This part of the regulation is therefore not to be declared void but is only to be declared inconsistent with the
Basic Law. The parliament is obliged to create consistency with the Basic Law.
246
61/77