cording to the legislature’s intention, permit individual communication events to be
attributed to the person participating in the communication. There must be uniform
thresholds of encroachment for the access to information on telecommunications and
its participants. The distinction according to customer data, traffic data and content
data is irrelevant to the definition of this.
§§ 112 and 113 TKG are disproportionate because the requirement for transmission
that it should be necessary to perform the tasks of the retrieving authority is completely inadequate as a restrictive element. Retrievals of customer data can only be proportionate if they are intended to prosecute serious offences. But neither §§ 112 and
113 TKG nor the non-constitutional law applying to the retrieving authorities lay down
a limitation of use to specific purposes which corresponds to the severity of the encroachment upon fundamental rights. §§ 112 and 113 TKG also violate the requirement that legislation should be definite and clear, since, measured against the intensity of the encroachment, they insufficiently legislate on the extent of authorisation to
encroach. The provisions which permit intensive encroachment do not define the purposes with sufficient precision, and nor does § 113 TKG define the target group of the
data retrieval with sufficient precision.
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Especially a search with incomplete data or wildcards results in a very large number
of search results and is very invasive. There will be confusions of names and investigation measures against persons who merely have a similar name, although the persons affected have not given any occasion for this. § 113.1 sentence 2 TKG, which
permits a search in sensitive access data with an increased need for protection, also
fails to take adequate account of the weight of the encroachments upon fundamental
rights made possible by these data.
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§ 95.3 TKG also violates Article 10.1 of the Basic Law. Telecommunications enterprises are subjected to a duty to store customer data for longer than is necessary for
their purposes. At the same time, rights of access are given to state authorities.
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Finally, the principle of equality before the law is violated, since the use of telecommunications is disadvantaged, without objective justification, in contrast to other
forms of distance communication and to communication in immediate spatial vicinity.
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III.
Opinions on the constitutional complaint were submitted by the Federal Government, the Federal Administrative Court, the Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragter für den Datenschutz und die
Informationsfreiheit), the Commissioner for Data Protection and the Right to Inspection of Files for the Land Brandenburg (Landesbeauftragte für den Datenschutz und
für das Recht auf Akteneinsicht) and the Berlin Commissioner for Data Protection and
Freedom of Information (Beauftragter für Datenschutz und Informationsfreiheit).
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1. The Federal Government is of the opinion that the constitutional complaint is at
least in part inadmissible, and that in other respects it is at all events unfounded.
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14/45