First, pursuant to sent. 2 of the provision, the ban on detrimental use did not apply if
the subject’s right to telecommunications privacy had been restricted pursuant to § 2
of the G 10 Act. Second, the ban on detrimental use did not apply if there were tatsächliche Anhaltspunkte (factual grounds) to suspect that one of the acts set forth in
§ 2 of the G 10 Act or in Article 138 of the Strafgesetzbuch (StGB, German Criminal
Code) was planned or committed.
The original version of the law provided in § 5.5 that the persons who were subject
to monitoring measures could not be informed of these measures. Enforcing the provisions of Article 10.2(2) and Article 19.4(3) of the Basic Law, which were incorporated into the Basic Law in 1968, § 9.5 of the G 10 Act barred legal actions against an
order implementing and the execution of monitoring. The Federal Constitutional Court
determined that these provisions were consistent with Article 79.3 of the Basic Law,
but declared § 5.5 of the G 10 Act void to the extent that this section prohibited notifying the subject of monitoring that such monitoring had taken place even if the objective of the monitoring would not be jeopardised by the notification. (BVerfGE 30, p. 1,
[at p. 3]). As a result, the parliament provided, in the amended § 5.5 of the G 10 Act,
for the notification of the subject of monitoring that such monitoring had taken place if
the objective of the monitoring would not be jeopardised by the notification. After being notified of the monitoring, it was, pursuant § 5.5(4) of the G 10 Act, left to the discretion of the subject of the monitoring to take legal action. In the case of strategic
surveillance, the Federal Constitutional Court did not regard it as necessary to notify
the subject of the collected data of the monitoring if the supervision of the monitoring
was ensured by independent state agencies and subsidiary agencies (cf. BVerfGE
67, p. 157 [at pp. 183 et seq.]).
5
2. The Gesetz zur Änderung des Strafgesetzbuches, der Strafprozessordnung und
anderer Gesetze (Verbrechensbekämpfungsgesetz) (Act amending the Criminal
Code, Code of Criminal Procedure and Other Acts [1994 Fight against Crime Act]) of
28 October 1994 (BGBl I, p. 3186), amended the G 10 Act in several respects. The
reason given in support of the amendments was that they were intended to make it
possible to monitor international telecommunications traffic in order to track the following spheres: international terrorism, the smuggling of narcotics to Germany, illegal
trade in weapons of war, and international money laundering and counterfeiting activities. All of these activities, it was represented, increasingly threatened the security
and the functioning of the state and the safety of the citizenry. The monitoring was intended to empower the responsible security authorities to prevent, resolve and prosecute criminal offences (cf. the statement in support of the bill, introduced to the Bundestag by the CDU/CSU and F.D.P. parliamentary groups; Bundestagsdrucksache
[BTDrucks, Records of the Bundestag] 12/6853, p. 42).
6
The amendments expanded the objectives that justify monitoring pursuant to
§ 3.1(2) of the G 10 Act. In addition to the threat of armed aggression (no. 1), the
amendments take up five more threats which result from different criminal activities
and which bear a relation to foreign countries. These threats were specified as fol-
7
7/77