3. In practice, doubts have arisen in the use of § 113 TKG, and these have also concerned the non-constitutional courts. It is in particular at issue whether the provision
also covers information on the owner of what is known as a dynamic internet protocol
address (dynamic IP address).
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The IP address is a number which makes it possible to contact computers and other
technical devices in a network, in particular in the internet; in simple terms, it may be
described as the computer’s “telephone number”. A distinction is made between static and dynamic IP addresses. Whereas a static IP address is firmly allocated to a particular subscriber (or more precisely to the network interface of a particular device of
the subscriber), in the case of a dynamic address the subscriber (or more precisely
the network interface of the device of the subscriber which communicates with the internet) is allocated a new IP address each time the device connects to the internet.
The reason for this procedure is the scarcity of numbers available in the version of the
internet protocol currently mainly in use. The dynamic addressing procedure is used
in particular by suppliers of services which offer dial-up internet connections. At present, therefore, the general rule is that dynamic internet addresses are allocated for
private internet use. However, current developments indicate that in future, on the basis of a new version of the internet protocol (Internet Protocol version 6) it will be possible to allocate addresses in the form of static IP addresses to a substantially greater
extent.
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It is undecided whether information may be requested under § 113 TKG as to which
subscriber (or more precisely which network interface that can be attributed to a particular subscriber) was allocated a specific dynamic IP address – of necessity known
to the retrieving authority – at a particular time. This is unclear because on the one
hand the only subject of the information is the allocation of the requested number to a
person and therefore what is known as customer data (see § 95.1 in conjunction with
§ 3 no. 3 TKG; admittedly, the term only applies to § 111 TKG in a sense going beyond the statutory definition), but on the other hand this information is only possible if
the telecommunications enterprises first analyse the traffic data stored under § 96
TKG for this purpose and establish what connection the number in question was allocated to at the time in question; at the same time, this means that their information
necessarily always relates to a specific connection. In the discussion on this, significance is attached to the equally contentious question as to whether the identification
of a dynamic IP address is solely an encroachment upon Article 2.1 in conjunction
with Article 1.1 of the Basic Law or at the same time an encroachment upon Article
10.1 of the Basic Law. There has not yet been a decision of the Federal Court of Justice (Bundesgerichtshof) on this issue. According to what is probably now the predominant view in case-law and literature, dynamic IP addresses may be retrieved by
way of § 113 TKG (for example Münster Higher Administrative Court (Oberverwaltungsgericht – OVG), Order of 17 February 2009 – 13 B 33/09 –, MultiMedia und
Recht (MMR) 2009, p.424; Zweibrücken Higher Regional Court (Oberlandesgericht –
OLG), Order of 26 September 2008 – 4 W 62/08 –, MMR 2009, pp. 45-46; Graulich,
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