Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
achieve its objective, if the notification cannot be made without endangering the life and limb of a person
or if the concerns of an affected person which carry more weight conflict with it, for example because the
notification of a measure that has had no further consequences would increase the encroachment upon
fundamental rights (see BVerfGE 100, 313 (361); 109, 279 (364 et seq.)). If there are compelling reasons
which also exclude subsequent notification, this must be judicially confirmed and reviewed at regular
intervals (see BVerfGE 109, 279 (367-368)). In a corresponding manner, it is also necessary to structure
the duties of notification with regard to the use of the data for purposes of warding off dangers or of
intelligence service duties.
In contrast, it is not constitutionally required to provide for comparably strict notification duties for 245
persons whose telecommunications traffic data were only by chance collected together with others and
who are not themselves the target of the actions of the authority. There may be a large number of such
persons involved in the analysis of telecommunications traffic data, but knowledge of their data for a short
period of time may not leave traces or have consequences for the persons involved. On the contrary, in an
individual case a notification may aggravate the encroachment upon their fundamental rights (see
BVerfGE 109, 279 (365); Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen
des Bundesverfassungsgerichts – BVerfGK) 9, 62 (81)). In these cases, it is in principle possible for a
notification to be withheld even if the persons involved were affected by the measure, but only trivially, and
it is to be assumed that they have no interest in the notification. There is no need for judicial confirmation
of this decision on the weighing of interests.
b) In addition, the proportionate formulation of precautionary storage of telecommunications traffic data 246
and of their use requires that effective legal protection and adequate sanctions are guaranteed.
aa) In order to guarantee effective legal protection, a retrieval or transmission of these data must 247
fundamentally be made subject to judicial authority.
Under the case-law of the Federal Constitutional Court, in the case of investigation measures which 248
create a serious encroachment upon fundamental rights preemptive supervision by an independent
instance may be constitutionally required. This applies in particular if the encroachment upon fundamental
rights is made secretly and is not directly perceptible by the person affected (see BVerfGE 120, 274
(331)). This may be the case with regard to the retrieval and transmission of telecommunications traffic
data. In view of the weight of the encroachment constituted by this, the discretion of the legislature is
reduced insofar as such measures must fundamentally be subjected to judicial authority. Because they are
independent from a personal and factual point of view and because they are bound solely by the law,
judges can best and most reliably protect the rights of the person affected in the individual case (see
BVerfGE 77, 1 (51); 103, 142 (151); 120, 274 (332)). Under Article 10.2 sentence 2 GG, there is an
exception for the supervision of encroachments upon the freedom of telecommunications by the
intelligence services. Here, a preemptive judicial supervision may be replaced by supervision – equally
relating specifically to the measure in question – by an agency or auxiliary agency appointed by parliament
(see BVerfGE 30, 1 (21)).
The legislature must make provisions defining the requirement of preemptive judicial review in a 249
concrete form with well-defined provisions, and must combine this with strict requirements as to the
contents and the grounds on the judicial order (see BVerfGE 109, 279 (358-359)). At the same time, it
follows from this that there must be a sufficiently substantiated justification and restriction of the retrieval of
the data requested; it is only this that enables the court to exercise effective supervision (see BVerfGE
103, 142 (160-161)). It is only on this basis that the court making the order can and must on its own
responsibility form an assessment as to whether the use of the data applied for complies with the statutory
requirements. Part of this is a careful review of the requirements of the encroachment, including in
particular the threshold of encroachment laid down by statute. The court must justify its order with
substantial detail. In addition, the data to be transmitted, in compliance with the principle of proportionality,
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