Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Pursuant to Article 3.1 of Directive 2006/24/EC, Member States shall ensure that the data specified in
Article 5 of Directive 2006/24/EC are retained; according to Article 6 of Directive 2006/24/EC, periods of
not less than six months and not more than two years from the date of the communication are to be set
down. Pursuant to Article 4 of Directive 2006/24/EC, Member States shall ensure that the data retained
are provided only to the competent national authorities in specific cases and in accordance with national
law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained
data in accordance with necessity and proportionality requirements shall be defined by each Member
State.
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Article 7 of Directive 2006/24/EC obliges the Member States to ensure that certain minimum
requirements as to data security are respected with regard to the data being retained. Apart from this, the
provisions of Directives 95/46/EC and 2002/58/EC are fully applicable (see Recitals 15 and 16 of Directive
2006/24/EC). According to Article 8 of Directive 2006/24/EC, the Member States shall ensure that the data
retained and any other necessary information can be transmitted upon request to the competent
authorities without undue delay. Pursuant to Article 13 of Directive 2006/24/EC, the Member States shall
furthermore ensure that the national measures implementing Chapter III of Directive 95/46/EC providing
for judicial remedies, liability and sanctions are fully implemented with respect to the processing of data
under Directive 2006/24/EC. The Directive does not make provision on who is to cover the costs of data
storage.
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3. Furthermore, § 100g StPO is significant for the Convention on Cybercrime of the Council of Europe
(Federal Law Gazette II p. 1242; hereinafter: Convention on Cybercrime) (see Federal Law Gazette
16/5846, pp. 27-28 and 50). The Convention not only establishes an obligation to adopt substantive
criminal law in order to fight cybercrime but also an obligation to adopt specific provisions under the law of
criminal procedure. In particular, according to Article 16 of the Convention, the competent authorities must
be enabled to order the expeditious preservation of traffic data. It must be made possible to oblige persons
who are in control of such data to preserve and maintain the integrity of those computer data at short
notice to enable the competent authorities to seek their disclosure (so-called quick freeze). The legislature,
however, regarded it as dispensable to adopt a provision to this effect because the data to be frozen had
to be retained anyway due to the comprehensive storage ordered pursuant to § 113a TKG (see Bundestag
printed paper 16/5846, p. 53).
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4. By its order of 11 March 2008, the Federal Constitutional Court, upon the application made by the
complainants in the proceedings 1 BvR 256/08, issued a temporary injunction according to which § 113b
sentence 1 no. 1 TKG may only be applied in a restricted manner until the decision in the main action (see
Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE
121, 1). By its order of 28 October 2008, it extended the temporary injunction to the effect that until the
decision in the main action, also § 113b sentence 1 nos. 2 and 3 TKG could only be applied with
restrictions (see BVerfGE 122, 120). Apart from this, the Federal Government was ordered to report [to the
Federal Constitutional Court] for consecutive periods of several months on the practical effects of the data
retention measures provided in § 113a TKG and of the temporary injunction on the prosecution of criminal
offences. The Federal Government complied with this order with regard to the periods lasting from 1 May
2008 to 31 July 2008, from 1 August 2008 to 1 March 2009 and from 1 March 2009 to 1 September 2009.
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II.
1. The complainants in the proceedings 1 BvR 256/08 challenge §§ 113a and 113b TKG. They challenge
the violation of Article 10.1, Article 12.1, Article 14.1, Article 5.1 and Article 3.1 GG. In the proceedings
conducted under the case number 1 BvR 508/08, approximately 34,000 other complainants concurred
with this, making the same submissions.
[…]
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