Finally, the duty to inform the subject of monitoring that personal data has been collected, which arises pursuant to § 3.8 of the G 10 Act, has been restricted by the rule
that the duty to inform does not apply in the case of § 3 of the G 10 Act if the personal
data resulting from telecommunications monitoring has been deleted by the Federal
Intelligence Service within three months or by the receiving agencies within another
three months (§ 3.8[2] of the G 10 Act).
11
In principle, the authority of the Federal Intelligence Service to monitor and record
telecommunications comes from § 1.1 of the G 10 Act. This provision reads, in the
version of the Begleitgesetz (Companion Act) to the Telecommunications Act that
was amended on 17 December 1997 (BGBl I, p. 3108), as follows:
12
1.The Federal and Länder (Federal state) Verfassungsschutzbehörden (authorities
concerned with the protection of the Constitution), the Militärischer Abschirmdienst
(Military Counter-Intelligence Service) and the Bundesnachrichtendienst (Federal Intelligence Service) are, in order to ward off dangers which threaten the free democratic order, the existence or the safety of the Federal Republic of Germany or of one of
the German Länder (Federal states) including the safety of the troops of the nonGerman states stationed in the Federal Republic of Germany which are party to the
North Atlantic Treaty,
2.the Federal Intelligence Service, in the framework of its mission pursuant to § 1.2
of the BND-Gesetz (Federal Intelligence Service Act), the latter as well for the objectives set out in § 3.1 sent. 2 nos. 2-6,
15
shall be entitled to monitor and record telecommunications and also, in the cases
covered by no. 1, to open and inspect the items which are subject to correspondence
and posts privacy.
16
§ 3 of the G 10 Act, in the version that is relevant in this context, reads as follows.1
17
(1) Apart from cases dealt with in § 2, monitoring of international wireless telecommunications links pursuant to § 1 may be ordered by application of the Federal Intelligence Service, and such monitoring must be ordered by the Federal minister who is
responsible pursuant to § 5 with the consent of the panel of parliamentarians created
pursuant to § 9. Monitoring is only permissible to collect information about issues the
knowledge of which is necessary for the timely recognition of the threat of
18
1.armed aggression aimed at the Federal Republic of Germany;
19
2.international terrorist attacks against the Federal Republic of Germany,
20
3.international proliferation of weapons of war as defined by the Gesetz über die
Kontrolle von Kriegswaffen (Act on the Control of Weapons of War) as well as the
threat of illegal foreign trade in goods, data processing programs and technologies
21
1. After the end of the oral argument, § 3 of the G 10 Act was amended again by Article 2 of the
Gesetz zur Änderung von Vorschriften über parlamentarische Gremien (Act Amending the Regulations on Parliamentary Panels) of 17 June 1999 (BGBl I, p. 1334).
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