objectives of the prevention of crime. If the factual basis chosen by the parliament
and the extension of the power to monitor to the planning phase of a criminal offence
are considered together with the catalogue of criminal offences that justifies the use
of the Federal Intelligence Service's information, the two prerequisites that are listed
first can only be constitutional if the catalogue of criminal offences is further restricted.
The broad scope of the catalogue of criminal offences can, however, only be justified
if the prerequisites regarding the certainty of predictions are higher. Moreover, the
element of a "tatsächlicher Anhaltspunkt" (factual ground) can, in its essence, only
comply with the constitutional prerequisites if a restrictive interpretation ensures that
a factual basis more than mere assumptions for the suspicion exists in the shape of
circumstances that are concrete and, to a certain extent, condensed.
Nor are the precautions for the protection of telecommunications privacy completely
sufficient from the constitutional point of view. Certainly, a regulation that goes beyond § 3.5(2) in that it reserves the decision whether to transfer data to an independent authority, as has been requested by data protection commissioners in the oral
argument, is not necessary for safeguarding the fundamental right. What is lacking,
however, is an obligation to keep a record of the transfer, as it is prescribed in the
case of the execution of the monitoring and of the destruction and the deletion of the
data. Under these circumstances, a sufficient control of the transfers by the panels
established for that objective or a judicial review cannot take place.
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The provisions cannot be interpreted to be in accord with the Constitution because,
on the one hand, the parliament can remedy the unconstitutionality of the provisions
in different ways. The Federal Constitutional Court must not anticipate such a solution. On the other hand, an interpretation of the provisions that is in accord with the
Constitution would not be consistent with the requirement of specificity and clarity that
the Basic Law places on provisions that permit the transfer of personal data obtained
by an encroachment upon fundamental rights and the change of the objective for
which this data may be used. The parliament is obliged to create consistency with the
Basic Law.
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VII.
§ 3.7 of the G 10 Act is inconsistent with Article 10 of the Basic Law.
Certainly, the regulation is, in itself, not objectionable from a constitutional point of
view. When considered on its own, the regulation obliges the receiving agencies to
evaluate whether they need the data transferred pursuant to § 3.5 of the G 10 Act for
the objectives specified in § 3.3 of the G 10 Act. This is a step of selection that corresponds to the step regulated in § 3.4 of the G 10 Act. This step is meant to ensure, as
established in §§ 3.3 and 3.5 of the G 10 Act, that the objective for which data is collected in a specific case is identified and that collecting data in this case is bound to
this objective. Thus, it complies with the requirements of Article 10 of the Basic Law.
Unlike § 3.4 of the G 10 Act, the provision in § 3.7(3) of the G 10 Act explicitly prohibits the further use of the data that is not needed but was not immediately destroyed
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