Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
5. In summary, neither the framework established by law for data security nor the provisions on the use 292
of data under § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO, § 113b sentences 1 nos. 2
and 3 TKG and § 113b sentence 1 half-sentence 2 TKG satisfy the constitutional requirements.
Consequently, the duty of storage under § 113a TKG itself also lacks a constitutionally workable
justification. The challenged provisions are therefore in their totality incompatible with Article 10.1 GG.
VII.
In contrast, the challenged provisions do not give rise to any constitutional objections with regard to 293
Article 12.1 GG, to the extent that a decision has to be made in these proceedings in this respect. The
occupational freedom of the fourth complainant in the proceedings 1 BvR 256/08 is not violated by the
challenged provisions and the associated financial burden.
1. However, the imposition of duties of storage which affect the complainant at least insofar as it itself 294
operates a publicly accessible anonymisation service, is an encroachment upon its occupational freedom.
As the commercial supplier of an anonymisation service, it may invoke occupational freedom under Article
12.1 GG. In addition, the provision has an objective tendency to regulate an occupation or profession. The
duties of storage are addressed to such service providers as generally offer publicly accessible
telecommunications services for end users in return for payment (see § 113a.1, § 3 no. 24 TKG) and
therefore to service providers which at all events typically offer the services for commercial purposes.
The encroachment is the regulation of the practice of an occupation or a profession. § 113a TKG 295
provides for a duty of storage, and in § 113b sentence 1 half-sentence 1 TKG for a duty of transmission;
these duties are presented as technical requirements for the provision of telecommunications services. In
contrast, when it is submitted that the duty of storage has the effect of the regulation of a choice of
occupation on anonymisation services because it is no longer possible to offer absolute anonymisation,
this is mistaken. It is true that the regulation of a choice of occupation comes into consideration not only
when access to an occupation or profession is legally restricted, but also when the meaningful exercise of
an occupation or profession is effectively made impossible (see BVerfGE 30, 292 (313)). However, the
duty of storage under § 113a.6 TKG does not result in it being fundamentally no longer possible to operate
anonymisation services. The anonymisation services may continue to offer their users the possibility of
surfing the Internet without the possibility of their IP addresses becoming known to private persons. In this
way they make it possible for users who have a static (and therefore open) IP address to conceal their
identity, and they protect other users against hackers or other illegal access. The anonymity is only lifted
vis-à-vis the state authorities, and here only if a retrieval of data is exceptionally permitted under the
narrow requirements for the direct use of the traffic data stored under § 113a. This therefore only deters
customers whose interest in anonymisation is directed towards the authorities which conduct
investigations in particularly serious cases. This does not vitiate the offer of an anonymisation service in its
entirety.
2. The encroachment created by the imposition of the duties of storage is constitutionally justified. It is 296
not disproportionate, either with regard to the technical effort or with regard to the associated financial
burdens.
Encroachments upon the freedom to practise an occupation or a profession must be justified by 297
sufficient reasons of the public interest (see BVerfGE 94, 372 (390); 101, 331 (347); 121, 317 (346)). Here,
in principle, rational reasons of general welfare are sufficient (see BVerfGE 7, 377 (405-406); 16, 286
(297); 81, 156 (189); established case-law). Here too the requirements of the principle of proportionality
apply, that is, the encroachment must be suitable to achieve the objective of the encroachment, necessary
and proportionate in the narrow sense. These requirements are satisfied in the present case.
a) The duties of storage and transmission are also justified with regard to the encroachment upon 298
occupational freedom by the objective of increasing the effectiveness of criminal prosecution, of warding
off danger and of the duties of the secret services. They are thus based on rational reasons of general
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