sic Law because such a threshold would ensure that the Federal Intelligence Service
takes the interests of the protection of informants and of the confidentiality of editorial
work into account.
An interpretation of the provision that is consistent with the Constitution is not possible as it would not be in conformity with the requirements of specificity and clarity
placed on legal regulations by Article 10 of the Basic Law. The challenged provision
only requires amendment; its deficiencies do not result in the provision being void but
only result in its inconsistency with the Basic Law. The parliament is obliged to create
consistency with the Basic Law.
250
V.
§ 12 of the Federal Intelligence Service Act obligates the Federal Intelligence Service to report to the Federal government the content of the data obtained pursuant to
its telecommunications monitoring activities. This obligation is challenged in these
proceedings only to the extent that § 3.3(2) of the G 10 Act excludes the reporting
obligation from the requirements of § 3.3(1) of the G 10 Act. In the framework of the
Federal Intelligence Service’s obligation to report to the Federal government,
telecommunications privacy is not sufficiently protected.
251
The effect of Article 10 of the Basic Law and Article 5.1 of the Basic Law (to the extent that acts of communication fall under the freedom of the press) also extends to
the Federal Intelligence Service’s duty to inform the Federal government of its
telecommunications monitoring activities because informing the Federal government
is one of the objectives for which the Federal Intelligence Service has been granted
the right to conduct telecommunications monitoring. The protection provided by the
obligation to report to the Federal government by no means becomes unnecessary
simply because personal data obtained as a result of monitoring is judged to be of no
importance as regards the fulfilment of the duty to inform the Federal government.
The duty to inform the Federal government not only requires that the Federal Intelligence Service draw up situation reports. The Federal Intelligence Service is, as § 12
of the Federal Intelligence Service Act explicitly emphasises, authorised to transfer
personal data.
252
It certainly cannot be criticised that § 3.3(2) of the G 10 Act excludes the duty to inform the Federal government established by § 12 of the Federal Intelligence Service
Act from the limitations of use pursuant to § 3.3(1) of the G 10 Act, as the limitations
provided in this sentence are not geared to the tasks of the Federal Intelligence Service. It is, however, inconsistent with Article 10 of the Basic Law that this provision also does not provide that telecommunications monitoring be bound to the objectives
established in § 1.1 and in §§ 3.1(1) and § 3.1(2) of the G 10 Act that justify telecommunications monitoring. Moreover, the absence of an obligation to mark personal data constitutes a violation of Article 10 of the Basic Law.
253
Nor are there any corresponding safeguards as regards the Federal government.
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63/77