Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Headnotes
to the judgment of the First Senate of 2 March 2010
– 1 BvR 256/08 –
– 1 BvR 263/08 –
– 1 BvR 586/08 –
1. Precautionary storage of telecommunications traffic data without cause for six months by
private service providers as provided by Directive 2006/24/EC of the European Parliament and
the Council of 15 March 2006 (OJ L 105 of 13 April 2006, p. 54; hereinafter: Directive 2006/24/EC)
is not in itself incompatible with Article 10 of the Basic Law (Grundgesetz – GG); any potential
priority of the Directive is therefore not relevant to the decision.
2. The principle of proportionality requires the formulation of the legislation on such storage to
take appropriate account of the particular weight of the encroachment upon fundamental rights
constituted by the storage. Sufficiently sophisticated and well-defined provisions are required
with regard to data security, to the use of the data, to transparency and to legal protection.
3. The guarantee of data security and the restriction of the possible use of the data, in well-defined
provisions, are, as inseparable elements of legislation creating a duty of data storage, the
responsibility of the Federal legislature, under Article 73.1 no. 7 of the Basic Law. In contrast,
the responsibility for creating the retrieval provisions themselves and for drafting the
provisions on transparency and legal protection depends on the legislative competence for the
respective subject-matter.
4. With regard to data security, there is a need for statutory provisions which lay down a
particularly high security standard in a well-defined and legally binding manner. It must be
ensured by statute, at all events fundamentally, that this standard is oriented to the state of
development of the discussion between specialists, constantly absorbs new knowledge and
insights and is not subject to a free weighing of interests against general business
considerations.
5. The retrieval and the direct use of the data are only proportionate if they serve overridingly
important tasks of the protection of legal interests. In the area of the prosecution of criminal
offences, this requires the suspicion of a serious criminal offence based on specific facts. For
warding off danger and for performing the duties of the intelligence services, they may only be
permitted if there is actual evidence of a concrete danger to the life, limb or freedom of a
person, to the existence or the security of the Federation or of a Land or to ward off a danger to
public safety.
6. A merely indirect use of the data by the telecommunications service providers to issue
information with regard to the owners of Internet Protocol addresses is permissible, even
independent of restrictive lists of legal interests or criminal offences, for the prosecution of
criminal offences, for warding off danger and for carrying out intelligence-services duties. For
the prosecution of regulatory offences, such information can only be allowed to be given in
cases of particular weight expressly named by the legislature.
FEDERAL CONSTITUTIONAL COURT
– 1 BvR 256/08 –
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