Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
protection, in that the Federation cannot sensibly legislate on a subject-matter allocated to it for legislation
without legislating on the data protection provisions at the same time (see BVerfGE 3, 407 (421); 98, 265
(299); 106, 62 (115); 110, 33 (48); established case-law; on data protection law see Simitis, in: Simitis,
BDSG , 6th ed. 2006, § 1 , marginal no. 4). This is the case with regard to §§ 113a, 113b TKG. These
sections are connected to the provisions of the Telecommunications Act on data protection, and linked to
the law on the technical conditions of the transmission of information they regulate the requirements to be
observed in each case for handling the data created or processed in the provision of telecommunications
services. They therefore link directly to facts that fall under the area of legislation of telecommunications.
On account of this close connection between the technical transmission process and the data arising in
this process, the necessary data-protection legislation for their use may only be passed uniformly by the
Federal legislature, which has the competence to legislate on the transmission process. Otherwise there
would be the danger that the technical and data-protection provisions on data processing would diverge,
and this would be incongruous. Accordingly, in addition to the provisions of §§ 113a and 113b TKG and on
the secrecy of telecommunications in §§ 88 et seq. TKG, the Telecommunications Act also contains, in §§
91 to 107 TKG, extensive provisions on data protection that are specific to this area; as far as can be
seen, their lawfulness from the point of view of competence has to date not seriously been called into
question.
The scope of its competence allows the Federation to pass the provisions necessary to create legislation 202
on the use of the data which is in conformity with fundamental rights. In particular, it may draft the
provisions which are necessary in order that the data storage provided for in § 113a TKG and the
transmission of the data to criminal prosecution authorities, authorities competent to ward off danger, and
to intelligence services and the use of the data to issue information under § 113 TKG comply with the
constitutional standards of Article 10.1 GG. Since it is a requirement of encroachments upon Article 10.1
GG that their purpose is determined in an area-specific and precise manner and is contained in welldefined provisions (see BVerfGE 100, 313 (359-360); 110, 33 (53); 115, 320 (365); 118, 168 (187-188)),
this implies the competence to pass legislation on the purpose of the storage that is area-specific and
precise and consists of well-defined provisions. However, in this connection the legislative competence of
the Federation only extends as far as is required under data-protection aspects and the associated
constitutional requirements. The Federation may therefore not base the authorisations for data retrieval
itself on Article 73.1 no. 7 GG. It needs a separate legal basis for this, or else it must leave the decision on
it to the Länder .
§§ 113a, 113b TKG fundamentally take this into consideration. They are exclusively restricted to creating 203
the conditions for access to the data by the state through storage duties and provisions on transmission.
But filling in the details is left to separate provisions on data retrieval. Notwithstanding the question of
substantive law as to whether the Federation has sufficiently restricted the purposes of use here (see
below C V 5 and VI 3 b), there are no objections to this on the grounds of competence.
IV.
The encroachments upon the secrecy of telecommunications are substantively constitutional if they 204
serve legitimate purposes in the public interest and apart from this comply with the principle of
proportionality (see BVerfGE 100, 313 (359)), i.e., are suitable, necessary and appropriate to fulfil the
purposes (see BVerfGE 109, 279 (335 et seq.); 115, 320 (345); 118, 168 (193); 120, 274 (318-19));
established case-law).
Storage of telecommunications traffic data without cause for six months for qualified uses in the course 205
of prosecution, the warding off of danger and intelligence service duties, as is provided by §§ 113a, 113b
TKG, is therefore not in itself incompatible with Article 10 GG. The legislature may in such a provision
pursue legitimate purposes to attain which such storage is suitable and necessary within the meaning of
the principle of proportionality. Nor is such storage unjustifiable from the outset in relation to proportionality
in the narrow sense. If legislation is drafted in a way that takes sufficient account of the encroachment
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