a) On a point of fact, the Federal Government submits as follows: In practice, the automated retrieval procedure under § 112 TKG is of primary importance. Experience
has shown that the number of retrievals in the procedure under § 113.1 TKG is between 3% and 5% of the number of requests under § 112 TKG. The automated retrieval procedure is used primarily for purposes of the prosecution of criminal offences. The number of retrievals for warding off danger or for intelligence purposes is
insignificant.
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In the practice of criminal prosecution, retrievals under §§ 112 and 113 TKG are
used above all in three typical fact situations: in the first situation, which comprises
approximately two-thirds of the cases, the retrievals are not connected to measures
of telecommunications surveillance but serve to connect a telephone number which
becomes known in investigation proceedings to a person, for example when notes
are seized and these contain unknown telephone numbers. In the second, less common group of cases, a retrieval prepares for a measure of telecommunications surveillance by investigating what telephone numbers and connections are owned by the
person to be observed. In the third group of cases, telecommunications surveillance
is followed up by determination of the owners of telephone numbers which became
known during such a procedure. In total, approximately 95% of the retrievals relate to
the determination of the person behind a known telephone number.
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In recent years, the number of retrievals of customer data has continuously increased. At the beginning of the 1990s, there were approximately 350,000 to 500,000
retrievals of customer data per year from the German Administration of Posts and
Telecommunications (Deutsche Bundespost), as it then was. In recent years, the
number of automated retrievals per year has risen from 1.5 m in the year 2001 to 3.4
m in the year 2005. The increase results primarily from the changed telecommunications behaviour of the population and in particular from the groups of persons relevant
for the security authorities. The number of authorities and telecommunications enterprises taking part in the automated information procedure under § 112 TKG has also
further increased. At the end of 2009, approximately 1,000 authorities registered with
the Federal Network Agency could have retrieved data from 120 telecommunications
enterprises. In the year 2008, 4.2 m requests from security authorities resulted in 26.6
m retrievals from the telecommunications enterprises (Federal Network Agency,
Tätigkeitsbericht 2008/2009 Telekommunikation, p. 245).
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b) There are doubts as to whether the constitutional complaint is even admissible.
From a legal point of view it is doubtful whether the complainants are personally,
presently and directly affected by the provisions of §§ 112, 113 TKG. They did not
show that there was some probability that they would be affected by a retrieval of customer data. With regard to the requests for information using incomplete search data
or using a similarity function under § 112.1 sentence 4 TKG, the complainants are not
presently affected, because the statutory instrument and Technical Regulations to be
issued under § 112.3 TKG do not yet exist. The fundamental decision to store the essential customer data for retention is mandatorily laid down by the European Data
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