IV.
The provision of § 3.4 of the G 10 Act, which obliges the Federal Intelligence Service to examine whether the personal data obtained by telecommunications monitoring is required for the objectives that justify these measures is not objectionable from
a constitutional point of view when considered by itself. This provision does not sufficiently take account of the requirements, which follow from Article 10 of the Basic
Law, that: (1) an infringement upon telecommunications privacy be bound to a specific use; and (2) that an infringement upon telecommunications privacy be proportional.
To this extent, this provision is inconsistent with telecommunications privacy and the
freedom of the press (which is to be considered alongside telecommunications privacy).
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It is true that § 3.4 of the G 10 Act complies with the principle that an infringement
upon the right to telecommunications privacy be bound to a specified purpose to the
extent that this provision of the G 10 Act requires that the Federal Intelligence Service
examine whether the data that is obtained by means of telecommunications monitoring is suitable for a specified objective. Apart from that, this principle is observed by
the fact that § 3.6(1) of the G 10 Act orders the destruction or deletion of the data if
the examination has shown that the data is unnecessary for the objectives of the Federal Intelligence Service. The Act, however, does not sufficiently ensure that the use
of the data that is not destroyed or deleted is bound to the objective that justified the
collection of data in the first place. Possible uses other than the early recognition of
the threats specified in the Act and the corresponding provision of information to the
Federal government are not excluded. The regulations provided by the Federal Intelligence Service Act, which address the processing and utilisation of personal data,
cannot fill this gap. § 11 of the Federal Intelligence Service Act excludes the application of the general provisions in § 14 of the Federal Data Protection Act for which the
storage, modification and use of obtained data is permissible. Apart from this, § 3.4 of
the G 10 Act does not acknowledge the duty, which follows from Article 10 of the Basic Law, to identify and mark the object of protection of fundamental rights to make it
possible to track the object of fundamental rights protection throughout the remaining
steps of processing.
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Nor does the challenged regulation make the further evaluation of the data dependent on meeting a threshold of proportionality. § 3.3 of the G 10 Act, which establishes specified requirements for the utilisation of the data, makes no reference to the
Federal Intelligence Service. Instead, the provision’s objective (the prevention, resolution or prosecution of criminal offences identified by this article) is addressed to the
authorities to which the Federal Intelligence Service, pursuant to § 3.5 of the G 10
Act, is to transfer information. The Act does not contain provisions that ensure that
the Federal Intelligence Service evaluates only the data obtained by telecommunications monitoring that shows a sufficient relevance to the work of the intelligence service for the areas of threat specified in §§ 1.1 and 3.1 of the G 10 Act. The fact that
such a threshold is lacking is also of importance with regard to Article 5.1(2) of the Ba-
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