cy. § 9.6 of the G 10 Act is declared to be inapplicable.
The question whether this also opens the recourse to a court in the cases of § 2 and
§ 3.1 sent. 2 no. 1 of the G 10 Act when the subjects of measures restricting telecommunications privacy have been informed is not important from the point of view of
constitutional law. As regards the constitutional aspect, it is sufficient to state that
when interpreting § 5.5(3) of the G 10 Act, notifying the monitored person may not be
made the prerequisite of opening the recourse to a court. Even if the person affected
has learned about the monitoring of his or her telecommunications traffic from another source, he or she is free to take recourse to a court. The possibility of taking recourse to a court would be unnecessarily diminished if the person affected by monitoring were also in such cases dependent on information about the monitoring activity
being provided.
297
X.
The regulations on the deletion of data in § 3.6 and in §§ 3.7(2) and 3.7(3) as well as
in § 7.4 of the G 10 Act are also consistent with the Basic Law.
298
They comply with the requirement, which follows from Article 10 of the Basic Law,
that data obtained by means of encroachments upon telecommunications privacy be
deleted as soon as it is no longer needed for the objectives that justify the encroachment. It cannot be inferred that the regulations fall short of the required minimum protection of fundamental rights.
299
Nor can the regulations be criticised from the perspective of Article 19.4 of the Basic
Law. The guarantee of recourse to a court, however, prohibits measures that undermine the protection afforded by this guarantee (cf. BVerfGE 69, p. 1 [at p. 49]). The
duty to delete data that is no longer required must therefore, for those cases in which
a judicial review of telecommunications monitoring conducted by the Federal Intelligence Service is possible, be co-ordinated with the guarantee of recourse to a court
in such a way that this guarantee is not circumvented. The provisions, however, permit such an interpretation.
300
§ 7.4(1) of the G 10 Act requires that data be deleted only if it is no longer of importance in the framework of the judicial examination of the legality of the measures that
restrict telecommunications privacy. Pursuant to sent. 3 of the provision, this is to be
evaluated every six months. As a general rule, this will mean that the data is to be
stored for another six months after the person affected was informed about the monitoring. In this context, the interests of the monitored person are protected by §§ 7.4(4)
and 7.4(5) of the G 10 Act, which require that the data is to be sealed, i.e. that it may
only be used for the judicial examination. It can, vice versa, reasonably be expected
of the monitored person that he or she decide within six months after being informed
about the monitoring whether he or she wants judicial examination of the case.
301
74/77