has shown, this results, in practice, in the monitored persons not being informed by
the Federal Intelligence Service. Instead, the Federal Intelligence Service applies the
regulation as if it established a duty to destroy data after three months.
Reasons of administrative practicability on which the regulation is based cannot justify such a far-reaching preclusion of the duty to give notice that telecommunications
monitoring has taken place. It is true that, in view of the large number of screenings
and in view of the fact that the material obtained largely proves irrelevant and is soon
destroyed, there are legitimate reasons that justify withholding notification. The mere
lapse of time, however, is not sufficient for justifying this, as it does not provide the assurance that within this period of time no further use has taken place.
291
As a general rule, it is the use to which collected data is put that constitutes the most
grievous strain on a subject of telecommunications monitoring. Nonetheless, collecting the data itself constitutes an encroachment upon telecommunications privacy
against which recourse to a court, in principle, must be possible. Under these circumstances, the fact that the affected person is not informed about the monitoring could,
at most, be justified if the collected data was destroyed immediately, without further
steps, as it was regarded as irrelevant. Without such a limitation, § 3.8(2) of the G 10
Act thus restricts Article 10 and Article 19.4 of the Basic Law in a disproportionate
manner.
292
As the provision can be made consistent with the fundamental rights by amending it,
it is not to be declared void but is only to be declared inconsistent with the Basic Law.
The parliament is obliged to create consistency with the Basic Law.
293
IX.
However, the regulation on the preclusion of the recourse to a court in § 9.6 of the
G 10 Act is consistent with the Basic Law.
294
This regulation has its constitutional basis in Article 10.2(2) of the Basic Law. This
sentence permits, in the case of restrictions on telecommunications privacy that serve
to protect the free democratic basic order or the existence or the security of the Federal Republic of Germany or of a Land, the preclusion of the right to the recourse to a
court if that right is replaced by a review of the case by agencies and auxiliary agencies appointed by the parliament. The Federal Constitutional Court has declared this
regulation, by which the 1968 constitutional amendment altered Article 10 of the Basic Law, consistent with Article 79.3 of the Basic Law (cf. BVerfGE 30, p. 1 [at pp. 26
et seq.]).
295
§ 9.6 of the G 10 Act keeps within the bounds of Article 10.2(2) of the Basic Law.
The preclusion of the recourse to a court is limited to orders pursuant to § 2 and § 3.1
sent. 2 no. 1 of the G 10 Act and does not cover the threats specified in nos. 2-6 of
this regulation. Parliamentary control is ensured by § 9 of the G 10 Act. Apart from
that, the persons affected do have recourse to a court, pursuant to § 5.5(3) of the
G 10 Act, after being informed of the measures restricting telecommunications priva-
296
73/77