C.
The constitutional complaint is well-founded in part.
However, the constitutional complaint is unfounded insofar as the complainants
challenge § 111 and § 112 TKG. The constitutional complaint is also unsuccessful insofar as it challenges § 113.1 sentence 1 TKG as such. § 113.1 sentence 1 TKG
must, however, be interpreted in conformity with the Basic Law to the effect that no
duty of information of the telecommunications service providers is created by it alone;
on the contrary, there is a need for a retrieval provision of non-constitutional law,
which must create an independent and clearly defined duty of the service providers.
In addition, § 113.1 sentence 1 TKG must be constitutionally defined to the effect that
the provision does not permit an attribution of dynamic IP addresses. Finally, the constitutional complaint is also well-founded insofar as it challenges § 113.1 sentence 2
TKG.
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108
I.
The central criterion is the right to informational self-determination under Article 2.1
in conjunction with Article 1.1 of the Basic Law.
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1. The challenged provisions do not encroach upon the secrecy of telecommunications of Article 10.1 of the Basic Law. However, the situation is different with regard to
§ 113.1 TKG, insofar as this is understood as an authorisation for the attribution of dynamic IP addresses.
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a) Article 10.1 of the Basic Law guarantees the secrecy of telecommunications,
which protects the incorporeal transmission of information to individual recipients with
the aid of telecommunications traffic against the taking of notice by state authority
(see BVerfGE 125, 260 <309> with further references). This is intended to avoid the
exchange of opinion and information by way of telecommunications installations
ceasing or its form and content being changed because the parties must expect that
government agencies will monitor the communication and obtain information on the
communication relationships and communication content (see BVerfGE 100, 313
<359>; 107, 299 <313>).
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aa) Article 10.1 of the Basic Law does not only cover the contents of communication.
On the contrary, the protection also covers the confidentiality of the immediate circumstances of the communications event, which include in particular whether, when
and how often telecommunications traffic occurred or was attempted between what
persons or telecommunications equipment (see BVerfGE 67, 157<172>; 100, 313
<358>; 107, 299 <312-313>; 125, 260 <309>; established case-law). An encroachment upon Article 10.1 of the Basic Law is therefore also made, for example, if malicious caller identification is used and without the knowledge of the person telephoning a connection is established in such a way that the call can be traced back (see
BVerfGE 85, 386 <395 ff.>) or calling line identification restriction is cancelled (see
§ 101 TKG).
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