data protection officers, regards the challenged provisions, measured against the
right to informational self-determination, as predominantly unconstitutional and submits as follows. The duty of storage of § 111 TKG violates the prohibition of data
storage for retention; the provision is just as disproportionate as §§ 112, 113 TKG.
The only situation when the provision of § 113 TKG does not encroach upon the area
of protection of Article 10.1 of the Basic Law is if its area of application is not overstretched. The supply of information on the identity of an internet user when the dynamic IP address is known must be regarded as information on traffic data and thus
is not permitted, on the basis of § 113 TKG,.
5. The Berlin Commissioner for Data Protection and Freedom of Information also regards the challenged provisions in their original wording as predominantly unconstitutional. Admittedly, he submits, § 95.3 TKG is not subject to objections under constitutional law, but § 111 TKG violates the right to informational self-determination. Unlike
§ 112.1 TKG, § 112.2 gives authority to encroach upon Article 10.1 of the Basic Law.
The requirements for retrievals under § 112 TKG are drafted too indefinitely, and
there is a lack of constitutional safeguards of informational self-determination.
93
B.
The constitutional complaint is predominantly admissible.
94
I.
1. However, the constitutional complaint is inadmissible insofar as it challenges a violation of Article 3.1 of the Basic Law. The complainants’ submission when they regard it as unjustified unequal treatment that storage is laid down only for the exchange of information via telecommunications networks but not for exchange of
information in immediate spatial vicinity or by post does not satisfy the substantiation
requirements of § 23.1 sentence 2, § 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). In particular they do not sufficiently show
to what extent the two groups which they have established for comparison represent
essentially the same fact situation.
95
2. The constitutional complaint is also inadmissible insofar as the complainants
challenge § 95.3 TKG and § 111.4 TKG. The interpretation of these provisions has
not yet been resolved, in particular with regard to the question as to whether the time
limit they lay down is a strict time limit or merely a maximum time limit which also permits earlier deletion where this may be constitutionally required (see Bock, in: Geppert/Piepenbrock/Schütz/Schuster, Beck’scher Kommentar zum TKG, 3rd ed. 2006,
§ 111, marginal no. 14; Klesczewski, in: Säcker, Berliner Kommentar zum TKG, 2nd
ed. 2009, § 111, marginal no. 23; Reimann, Datenschutz und Daten 2004, p. 421
<424>). Since the complainants have the possibility, after their contracts with their
service providers end, to have this question first resolved by the non-constitutional
courts, it cannot be said that all legal remedies are exhausted in this respect (see
§ 90.2 sentence 1 BVerfGG).
96
19/45