Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
113b TKG relates to transmission of the data by private service providers. The transmission provided for is
based on a statutory arrangement and therefore directly on an act of state authority, which under Article
1.3 GG is bound by fundamental rights, requires a sovereign order in the individual case, and is made to
authorities. It is therefore to be seen in law as an encroachment by the state.
c) § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG also creates an encroachment 195
upon Article 10.1 GG. It provides that authorities may demand from the service providers information on
contract and customer data under §§ 95, 111 TKG; the service providers can only determine these by
using the data stored under § 113a.4 TKG. Independently of the question as to whether and how far
information under § 113 TKG is in general an encroachment upon Article 10.1 GG or whether
fundamentally it is only the right to informational self-determination under Article 2.1 in conjunction with
Article 1.1 GG that is affected here, at all events information under § 113b sentence 1 half-sentence 2, §
113.1 TKG is certainly an encroachment upon the secrecy of telecommunications of Article 10.1 GG. For
the provision relates to the use of the data which are stored under § 113a TKG and thus acquired by an
encroachment upon Article 10.1 GG. Every following use of data which were once obtained in the form of
an encroachment upon Article 10.1 GG must always be measured against this fundamental right (see
BVerfGE 100, 313 (359); 110, 33 (68-69)); 113, 348 (365)). Here too it must be immaterial that this use,
provided by statute, is made not by state authority itself, but by private suppliers, complying with the
request for information.
d) Finally, § 100g StPO is also an encroachment upon Article 10.1 GG. It enables the criminal 196
prosecution authorities to have the data stored under § 113a TKG transmitted to themselves by the
persons obliged to store them, and to use these data. § 100g.1 sentence 1 StPO itself and the exercise of
this authorisation, therefore, as acts of public authority, also encroach upon the area of protection of Article
10.1 GG.
III.
Formally, there are no objections to the challenged provisions. They fulfil the requirement of a statutory 197
basis under Article 10.2 sentence 1 GG, and they fall under a competence of the Federation.
1. Under Article 10.2 sentence 1 GG, restrictions of the secrecy of telecommunications may be imposed 198
only on the basis of a statute. Firstly, there are no doubts in this connection with regard to § 113b TKG and
§ 100g StPO, which – if necessary in conjunction with other provisions – are a statutory basis for individual
judicial orders, on the basis of which access to the data takes place. § 113a TKG is also constitutionally
unobjectionable in this respect; for the storage of data, it does not refer to individual judicial orders but
directly orders storage itself. Article 10.2 sentence 1 GG also does not prevent restrictions of the secrecy
of telecommunications that are made directly by statute (see BVerfGE 85, 386 (396 et seq.)).
2. The Federation does not lack legislative competence. The legal basis of §§ 113a, 113b TKG is Article 199
73.1 no. 7 GG; that of § 100g StPO is Article 74.1 no. 1, Article 72.1 GG.
However, Article 73.1 no. 7 GG only directly authorises legislation on the technical aspect of the 200
installation of a telecommunications infrastructure and of the transmission of information with the aid of
telecommunications equipment. This Article does not cover provisions which are focused on the contents
transmitted or the nature of the use of the telecommunications (see BVerfGE 113, 348 (368); 114, 371
(385)) and which, for example, provide for telecommunications surveillance for the purpose of acquiring
information for tasks of criminal prosecution or warding off danger. With regard to legislative competence,
each such provision is to be assigned to the area of law for whose purposes the surveillance is provided
(see BVerfGE 113, 348 (368)).
However, §§ 113a and 113b TKG, as part of the provisions on data protection law, are also, by virtue of a 201
factual connection, covered by the competence to pass telecommunications legislation. In the absence of
express assignment of competence, the law of data protection is fundamentally in the competence of the
Länder . But by virtue of a factual connection, the Federal legislature is competent to legislate on data
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