Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
It is important on the one hand for this purpose that the authorities do not themselves acquire any 256
knowledge of the data to be stored by way of precaution. In connection with such rights of information, the
authorities do not themselves retrieve the data that have been stored by way of precaution without cause,
but are merely given personal information as to the owner of a particular connection, who is determined by
the service providers by recourse to these data. In this connection, the informative value of these data is
strictly limited. The use of the data stored by way of precaution only provides the information as to what
owner was registered on the Internet with regard to an IP address that is already known, for example
where the address has been determined by other investigations. The formal structure of such information
is similar in certain respects to the retrieval of the name of the owner of a telephone number. Its
informational value is limited in range. It is not possible to carry out systematic investigation over a long
period of time or to prepare personality profiles and track people’s movements on the basis of such
information alone.
It is also crucial that for such information only a small section of the data, which is determined in 257
advance, is used; the storage of these particular data in itself could therefore be ordered subject to far less
strict requirements. If solely the Internet access data necessary for such information were stored in order
to identify dynamic IP addresses, this would be considerably less burdensome than the virtually complete
storage of the data of all telecommunications connections. It follows from considering the combination of
these aspects that the requirements which otherwise apply to telecommunications traffic data stored for
use by way of precaution do not apply in the same way to such information.
b) However, creating official rights to information in order to identify IP addresses is also of substantial 258
weight. In doing this, the legislature influences the conditions of communication in the Internet and limits
its anonymity. On this basis, in conjunction with the systematic storage of Internet access data, it is
possible to a great extent to establish the identity of Internet users. Where private persons who find that
they are injured on the Internet register the relevant IP address and make a criminal complaint, or where
the authority itself traces IP addresses, these addresses can be connected to specific owners, and the
communication processes of this IP address can be attributed to individuals with substantial probability.
But despite a certain similarity, attributing an IP address to the owner of a connection cannot be equated 259
to the identification of a telephone number with regard to its weight for the person affected. Telephone
numbers are permanent identifiers, which are exchanged between the users, and therefore it is possible to
retrieve the details of their owners even independently of specific telecommunications acts. In contrast,
information on the owner of a dynamic IP address necessarily also contains the information that this IP
address was used at a particular time, and from what connection it was used. In addition, the telephone
number may easily be concealed from private persons, whereas the IP address can basically be
concealed only by the use of anonymisation services. The potential relevance to the right of personality of
a retrieval of the identity of the owner of an IP address is also different from that of the owner of a
telephone number. On the mere basis of the large number of new connections which are made in each
case by visiting Internet sites, it has more informative value than a retrieval of telephone numbers. The
knowledge that contact to an Internet site has been established also has a different substantive meaning:
since the contents of Internet sites, unlike the spoken word in telephone conversations, are electronically
fixed and can be retrieved again for a long period, they may often reliably be used to reconstruct the
subject with which the communicating person was dealing. The connecting of the IP address to an
individual as that person’s “Internet telephone number” thus at the same time gives information on the
contents of the communication. The distinction between external connection data and contents of a
conversation, which applies to a telephone call, is broken down here. If a visitor to a specific Internet site is
identified by information via an IP address, not only is it known with whom the visitor had contact, but
normally also what were the contents of the contact.
Conversely, admittedly, there is also increased interest in the possibility of being able to attribute 260
communication connections in the Internet to the relevant actors, in order to protect legal interests or to
safeguard the legal order. In view of the increasing importance of the Internet for the most varied areas
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