Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
evidence of a concrete danger to the legal interests to be protected. This requirement means that
presumptions or general principles derived from experience are not sufficient to justify access to the data.
On the contrary, specific facts must have been established which support the prognosis of a concrete
danger. Here, the facts of the case must be such that there is sufficient probability in the individual case
that specific persons will cause damage to the interests protected by the legislation in the foreseeable
future, if the state does not intervene. The statements by the Senate in this connection on the
requirements for online searches apply here with the necessary modifications (see BVerfGE 120, 274
(328-329)). The concrete danger is defined by three criteria: the individual case, the imminence of the time
when a danger will become actual damage, and the relationship to individual persons who are likely to
cause the damage. Admittedly, the retrieval of the data stored by way of precaution may already be
justified at a time when it is not yet possible with sufficient probability to establish that the danger will arise
in the near future, provided that particular facts indicate the threat of a danger to a legal interest of
paramount importance. On the one hand, the facts must allow events to be identified, and it must at least
be possible for the nature of these events to be put into concrete terms and for the time of their occurrence
to be foreseeable, and on the other hand, the facts must indicate that particular persons will be involved,
and at least enough must be known of their identity to allow the measure to be specifically targeted at
them and concentrated on them. In contrast, insufficient account is taken of the weight of the
encroachment upon fundamental rights if the actual occasion of the encroachment is located far in
advance of a concrete danger to the interests protected by the legislation, and this concrete danger cannot
yet be foreseen in concrete terms.
c) The constitutional requirements for the use of the data to ward off danger apply to all authorisations to 232
encroach whose objective is preventive. They therefore also apply to the use of the data by the
intelligence services. Since in all these cases the adverse effect of the encroachment is the same for
those affected, there is no occasion to create different rules depending on the authority involved, for
example to distinguish between police authorities and other authorities which have preventive duties, such
as authorities for the protection of the constitution. The fact that police authorities and authorities for the
protection of the constitution have difference duties and powers and may consequently undertake
measures with different degrees of encroachment is in principle irrelevant to the weighting of a use of
telecommunications traffic data stored by way of precaution comprehensively and for a long time (see
BVerfGE 120, 274 (329-330)). Admittedly, differentiations between the authorisations of the various
authorities with preventive duties may stand up to constitutional review (see BVerfGE 100, 313 (383); 120,
274 (330)). However, when the legislature provides for the individual powers of security authorities whose
duty is advance intelligence, it is bound by the constitutional requirements which follow from the principle
of proportionality (see BVerfGE 120, 274 (330-331)). In the present case, these lead to the conclusion that
particular requirements must be imposed for the use of data both with regard of the legal interests to be
protected and with regard to the threshold of encroachment to be observed in this connection.
There is no reason why these requirements should not apply to the intelligence services’ performance of 233
their tasks. Admittedly, the tasks of the intelligence services are fundamentally restricted to the collection
of information to be supplied to the government. This reduces the weight of the encroachment in that the
danger that the individual citizen is observed is not compounded by the danger of further measures
following on this. At the same time, however, the weight needed to justify such encroachments is reduced,
for mere information given to the government cannot prevent violations of legal interests. Preventing
violations of legal interests is only possible as a result of subsequent measures taken by the authorities
responsible for warding off danger, whose constitutional restrictions in the use of the data may not be
circumvented by more extensive powers of use granted in advance. Apart from this, there is a particularly
burdensome effect of such encroachments upon the citizens in that not only the given encroachment upon
the secrecy of telecommunications as such is normally hidden, but virtually all the activities of the
intelligence services are carried out in secret. The powers given to these services to use the
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