oblige the telecommunications service providers to transmit such data to particular
authorities, where there is an effective retrieval of data and for specific purposes
which the federal legislature must lay down in detail (see BVerfGE 125, 260
<344 ff.>). In contrast, the authorisation for such a retrieval of data may not itself be
based on the competence for telecommunications law, but must have a basis of competence in non-constitutional law.
Accordingly, a demand for information under § 113.1 TKG – as in § 112 TKG – also
requires a separate legal basis in non-constitutional law. But unlike in the case of
§ 112 TKG, in which the federal legislature imposes on a federal authority the duty to
supply information, the federal legislature cannot definitively create a duty, on the basis of Article 73.1 no. 7 of the Basic Law, for private telecommunications enterprises
to comply with a desire for information. Instead, imposing a duty on private persons
which at the same time obliges them to reveal their customers’ data is not part of the
definition of the limits of data protection, but an inseparable component of data retrieval. On the basis of Article 73.1 no. 7 of the Basic Law, the federal legislature may
only provide for the opening up of the customer data for the performance of government duties, but not for the access to these data itself, and consequently the imposition of an obligation on the telecommunications service providers as private persons
holding information must be laid down in the retrieval provision in subject matter
which is reserved to Land legislation. A legal basis which merely permits data relating
to freely accessible information to be collected, but does not itself create an information duty of third parties, is insufficient for this purpose (examples are § 26 of the
Rhineland-Palatinate Police and Regulatory Authorities Act; Article 31 of the Bavarian
Police Duties Act; § 13.1 of the Hesse Act on Public Security and Order; Article 5 of
the Bavarian Act on the Protection of the Constitution; § 4. 1 of the Saxony Act on the
Protection of the Constitution). Accordingly, in the light of the system of competencies
of the Basic Law, § 113.1 TKG must be interpreted to the effect that for demands for
information in areas where legislation is reserved to Land law it requires specific legal
bases in Land legislation which independently create a duty of information of the
telecommunications enterprises.
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2. The principle that provisions must be clearly drafted has a specific function in connection with encroachments upon the right to informational self-determination; in this
respect too, § 113.1 TKG is to be interpreted to require specific legal bases for data
retrieval in the form of a demand for information addressed directly to private third
persons, where these legal bases must independently create an information duty of
the telecommunications enterprises. Consequently, strict retrieval provisions are also
required for federal subject matter which goes beyond a mere authority to collect data.
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a) If a statutory provision gives authority for an encroachment upon the right to informational self-determination, the requirement of definiteness and clarity also has the
specific function of ensuring that the purpose of use of the information in question
must be defined with sufficient precision. This reinforces the constitutional require-
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