Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
telecommunications traffic data which have been comprehensively stored by way of precaution thus
particularly encourage the sense of being observed in a manner that cannot be monitored, and develop
persistent intimidating effects on the exercise of freedom.
The Senate is aware that as a result of this, use by the intelligence services of the telecommunications 234
traffic data stored by way of precaution will in many cases be impossible. However, this results from the
nature of their tasks in advance intelligence and does not create a constitutionally acceptable occasion to
relax the requirements for an encroachment of this kind that arise from the principle of proportionality (see
BVerfGE 120, 274 (331)).
d) It must also be ensured that the restriction of the use of data to specific purposes also applies to the 235
use of the data after they are retrieved and transmitted to the retrieving authorities, and there must be
procedures in place to support this. In this respect it must be guaranteed by statute that after transmission
the data are analysed without delay and, where they are irrelevant to the purposes of the collection, are
deleted (see BVerfGE 100, 313 (387-388)). Apart from this, it must be provided that the data are destroyed
as soon as they are no longer necessary for the purposes laid down, and that a record is made of this (see
BVerfGE 100, 313 (362); 113, 29 (58)).
The telecommunications traffic data do not lose the protection given them by Article 10 GG as a result of 236
the fact that a state authority has already obtained knowledge of them. The fundamental right’s
requirement that the use be clearly limited to specific purposes therefore also applies to the transmission
of the data and information to further authorities. However, this does not exclude changes of purpose. But
these require their own statutory basis, which in its turn must comply with constitutional requirements (see
BVerfGE 100, 313 (360); 109, 279 (375-376)). In consequence, there may only be a provision for the
transmitted telecommunications traffic data to be passed on to further agencies where as this is done to
carry out duties for which direct access to these data would also be permissible (see BVerfGE 100, 313
(389-390); 109, 279 (375-76)); 110, 33 (73)). This must be recorded by the authority passing the data on
(see BVerfGE 100, 313 (395-396)). Here, the limitation to specific purposes can be guaranteed only if it is
still discernible after the collection that these are data which were stored without cause by way of
precaution. Accordingly, the legislature must provide for an obligation to label these data (see BVerfGE
100, 313 (360-361)).
e) Finally, there may also be constitutional limits with regard to the extent of the data to be retrieved. 237
Thus, for example, from the point of view of proportionality, many gradations can be identified within the
various requests for information, for example depending on whether they relate only to one single
telecommunications connection, whether they are directed at the transmission of data from one single
radio cell at a particular time, whether they relate only to the communication between individual persons –
possibly restricted to a particular period of time or a particular form of communication – and at the same
time either include or exclude the location data, or whether they aim at a complete transmission of the
data of a person to track that person’s movements or create a personality profile of that person with as
much detail as possible. With regard to the weight of the encroachment, it may also make a difference
whether, when the data are transmitted, filters are used to screen out specific telecommunications
connections to protect particular confidential relationships.
But in view of the high thresholds which under the above standards already apply fundamentally to the 238
use of telecommunications traffic data stored by way of precaution, the legislature has legislative
discretion when it provides in more detail for the scope of the use of data. In particular, the legislature is
fundamentally also at liberty to leave such considerations of proportionality to the judge appointed to
decide whether to order a retrieval of data, in the review of the individual case. As a product of the
principle of proportionality, it is, however, constitutionally required that there should be a fundamental
prohibition of transmission of data, at least for a narrowly defined group of telecommunications
connections which rely on particular confidentiality. These might include, for example, connections to
persons, authorities and organisations in the social or ecclesiastical fields which offer advice in situations
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