VIII.
The provisions of § 3.8(2) of the G 10 Act, which address the duty to inform the subject of telecommunications monitoring that such monitoring has taken place, is not
consistent with the Basic Law.
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1. It is, however, not objectionable from the constitutional point of view that sentence
§ 3.8(1) of the G 10 Act only provides a restricted form of notice to the subject of
telecommunications monitoring. Article 10.2(2) in conjunction with Article 19.4(3) of
the Basic Law permits the withholding of such notice if the restriction of telecommunications privacy serves to protect the free democratic basic order or the existence or
security of the Federation or of a Land (Federal state). The jurisprudence of the Federal Constitutional Court, however, has established that this only applies when qualified by the limitation that the person affected is to be informed subsequently as soon
as it can be precluded that the objective of the measure is jeopardised and a danger
to the existence or security of the Federation or of a Land can be precluded as well
(cf. BVerfGE 30, p. 1 [at pp. 31-32]). This leads to the conclusion that monitoring that
serves the early recognition of the threat of an armed attack (§ 3.1[1] and § 3.1 sent.
2 no. 1 of the G 10 Act) is not objectionable from the constitutional point of view.
287
Certainly, these points of view do not apply to the threats added in nos. 2 to 6 of this
regulation by the 1994 Fight against Crime Act. What applies in this context, however,
is Article 10.2(1) of the Basic Law, which permits the restriction of telecommunications privacy for other objectives. Justification for such secrecy can include the risk
that the disclosure of information or of methods applied, which are in the concrete
case in question still to be kept secret, would jeopardise the fulfilment of the involved
agency's mission (cf. BVerfGE 57, p. 250 [at p. 284]). Apart from the fulfilment of the
involved agency's mission, overriding detriment to the good of the Federal Republic
of Germany or to a Land (Federal state) that is to be expected if the affected person is
informed, can, under certain circumstances, be taken into consideration as an opposing interest. In the intelligence service sector, this may be the case e.g. when foreign
secret services are involved or in the field of counter-intelligence (in this context, see
the decision of the Oberverwaltungsgericht [Higher Administrative Court] of Berlin,
NVwZ [Neue Zeitschrift für Verwaltungsrecht] 1987, p. 817 [at p. 819]). The protection of informants can also be regarded as a legitimate interest that justifies the maintenance of secrecy (cf. BVerfGE 57, p. 250 [at p. 284]).
288
2. However, § 3.8(2) of the G 10 Act violates Article 10 and Article 19.4 of the Basic
Law.
289
Pursuant to this regulation, notification of the measures restricting telecommunications privacy can be excused if the data has been destroyed by the Federal Intelligence Service or a receiving agency within three months after it was obtained. Thus,
the regulation only focuses on the point in time when the data is deleted. For the decision whether or not to give notice to the subject of monitoring, it is not of importance
what has happened to the data during the three-month period. As the oral argument
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