sion of the group of persons that obtain knowledge of the circumstances and the content of an act of telecommunication. Taking note of an act of telecommunication may
precede measures taken against the subjects of monitoring. The Federal Intelligence
Service cannot take any measures that are directed against individuals, and the Federal government, which the Federal Intelligence Service is to inform about specified
threatening situations, does not take measures against the participants in an act of
communication in the framework of its political counter-strategies. But the agencies
to which the data is to be transmitted pursuant to § 3.5(1) of the G 10 Act will, as a
general rule, institute investigations against the subjects of monitoring that may lead
to further inquiries and, as the case may be, to the institution of criminal proceedings.
In this context it is also of importance, for judging the intensity of the encroachment,
that the Federal Intelligence Service has obtained the information by means of a
method that, due to the broad scope of its power to monitor telecommunications, including the power to conduct monitoring that is not motivated by suspicion, very severely affects telecommunications privacy. This is only consistent with Article 10 of
the Basic Law because it merely serves strategic objectives and requires the identification of the participants in an act of communication only to facilitate the interpretation of the information, which is always fragmentary and therefore requires interpretation. Under these circumstances, the acceptability of the transfer of data to the
designated agencies can only be ensured if the interests served by the transfer prevail over telecommunications privacy and if there is a safe basis for the assumptions
that: (1) the data is relevant to these interests; and (2) that the persons affected by
monitoring are, with sufficient probability, involved in criminal offences. If this basis is
lacking, the bounds of what is reasonable have been transgressed.
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It is therefore imperative that the legal interest (the prevention, resolution and prosecution of the listed criminal offences) justifying the transfer be of great importance. A
sufficient factual basis for the suspicion that criminal offences are being planned or
have been committed is also imperative. A lower degree of probability (with respect to
a possible or actual violation of the applicable legal interest) justifies transfer when
the legal interest at stake is very important. Similarly, less cogent facts may form the
basis of a suspicion justifying transfer when the legal interest at stake is very important.
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The more important the legal interest is, the further the threshold for transfer may be
shifted to a point in time prior to the threatening violation of a legal interest. In order
for acts of planning, together with the prerequisite of the existence of factual grounds,
to be sufficient to serve as a threshold for the transfer of data, the legal interest must
be of outstanding importance (cf. BVerfGE 30, p. 1 [at p. 18]). This means that if the
parliament confines itself to a few high-ranking legal interests when identifying the applicable legal interests and ascertaining if the damage that threatens them is extraordinarily high, the parliament is not hindered from keeping the threshold for transfer
relatively low. If the parliament, on the contrary, considerably expands the catalogue
of protected legal interests and also includes acts that show a low degree of threat in
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