Retention Directive. Even if the duty of storage goes beyond § 111 TKG, this excludes a review under the standard of the Basic Law. In addition, the complainants
may challenge the duty of collection and storage in proceedings against the service
provider, and consequently the subsidiarity of the constitutional complaint is not guaranteed. With regard to § 95.3 TKG, the constitutional complaint is inadmissible because the provision does not contain a duty to store data, but only a right to do so.
c) The challenged provisions are to be measured not against Article 10.1 of the Basic Law, but against the right to informational self-determination. Article 10.1 of the
Basic Law protects the confidentiality of the contents of communication and of the
specific circumstances of communications events. The customer data in question
have no connection to this, for it is impossible to make inferences from them with regard to the circumstances or contents of specific conversations. Nor is the retrieval of
access data under § 113.1 sentence 2 TKG an encroachment upon Article 10.1 of the
Basic Law. At most, these data may make it possible to have subsequent access to
traffic data; but merely collecting the access data is not access to the traffic data
themselves.
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d) The encroachment upon the right to informational self-determination constituted
by information on customer data is not solely attributable to §§ 112, 113 TKG. The security authorities which request information act in each case on the basis of a nonconstitutional statute which applies to them, for example a police statute or the Code
of Criminal Procedure, which always requires suspicion of a criminal offence as the
threshold of encroachment for criminal investigation proceedings. §§ 112, 113 TKG
were not intended to remove the complex provisions of the non-constitutional statute
and replace them by a definitive uniform provision which applies to all security authorities. On the contrary, these provisions were conceived in order to interact with the
non-constitutional law applicable in each case; this non-constitutional law alone is capable of supplying the actual authorisation to collect the personal data. In addition to
this, §§ 112, 113 TKG create the requirements under telecommunications law for an
authority actually to receive the information which it is entitled to collect, by providing
for a duty of the telecommunications enterprises to make data available and to give
information and for a retrieval procedure.
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e) Admittedly, the duty of collection and storage laid down in § 111 TKG encroaches
upon the general right of personality of telecommunications customers, but this encroachment is not very strong. With the exception of prepaid products, the telecommunications enterprises already store the data in question in their own interest. The
data collected, as basic data to determine how a person can be contacted by
telecommunications, are not highly sensitive and are comparable to the data on residence or motor vehicles which have long been stored in public registers. The encroachment caused by § 111 TKG is not of particular weight for the mere reason that
it makes anonymous telephoning impossible. The interest in anonymity does not enjoy protection over and above the general protection of fundamental rights. The duty
of storage of § 111 TKG is suitable and necessary to achieve its objectives. The sys-
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