communications-related information. The information on the owners of telephone
numbers reveals which persons communicated with each other. Article 10.1 of the
Basic Law guarantees that confidential telecommunication is possible. However, this
requires that it is possible for telecommunication to occur anonymously and that the
subscribers are protected against being identified. Customer data too must, as data on the identity of telecommunications subscribers, be subject to the secrecy of
telecommunications.
The complainants further submit that the provisions of §§ 111 to 113 TKG procedurally violate the citation requirement of Article 19.1 sentence 2 of the Basic Law. Substantively, they are disproportionate. The provisions of §§ 111 to 113 TKG are not
comparable to the storage and transmission of other data, such as main account data, residents’ registration data and data from the motor vehicle registers. The provision of § 113 TKG is relevant in practice above all in pursuing copyright violations in
the internet by way of dynamic IP addresses.
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The complainants emphasise above all that § 111 TKG introduces a duty to collect
and store personal data for retention; this duty violates the prohibition of data retention for purposes that are indefinite or cannot yet be determined. General descriptions
of duties such as purposes of criminal prosecution or purposes of warding off danger
are not an adequate intended purpose in this sense. The provision creates a system
of precautionary state surveillance which is unique to date. At the same time, the provision dispenses with every degree of suspicion and with every proximity to danger of
the persons affected. It is disproportionate to prohibit the possibility of anonymous
communication for the whole population despite the fact that this possibility is only
abused by a few. If people were to abstain from communication with others out of fear
of disadvantages, this would inflict harm on a democratic society. At all events, the
serious encroachment upon fundamental rights created by § 111 TKG is disproportionate. A systematic storage of customer data is scarcely qualified to encourage
general interests. Criminals often use telecommunications services anonymously or
using a false name, and therefore the storage of customer data cannot contribute a
great deal to the successful investigation of crimes. Even without § 111 TKG, effective criminal prosecution and effective exercise of other state duties are possible. In
contrast, a systematic storage of data is an extremely intensive encroachment, because it makes it possible to reproduce telecommunications behaviour at all times. It
is mistaken to attribute less sensitivity to customer data than to traffic data and the
contents of communications, since customer data and telecommunications contents
are only informative in combination with each other.
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§§ 112 and 113 TKG create not only a duty of information for the service providers,
but also an entitlement to collect data of the authorities entitled to receive information,
without an additional authorising provision being necessary. Apart from this, a general data collection authorisation under non-constitutional law is not sufficient to give
authorisation for the transmission of personal data. On the contrary, this requires an
authorisation of transmission with well-defined provisions. §§ 112 and 113 TKG, ac-
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