Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
welfare, which they are suitable to promote. A less encroaching provision that is as effective and is costeffective for the state is not apparent. Since the privatisation of the telecommunications sector,
telecommunications traffic data are no longer collected by the state, and therefore the state itself is not in
the position to store data directly. A transmission of all connection data to the state in order that the state
itself stores them is out of the question, in the first instance because of the risks entailed both for the
protection of telecommunications secrecy and for the security and completeness of the data. In addition,
when there are adverse effects on an occupation as the result of the imposition of cost burdens or costly
obligations, the necessity does not cease to apply simply because financing the relevant task from public
funds would be a more lenient means for those affected (see BVerfGE 81, 156 (193-194); 109, 64 (86)).
More lenient means are not those which merely shift a cost burden (see BVerfGE 103, 172 (183-184);
109, 64 (86)).
b) The imposition of a duty of storage is not typically excessively burdensome for the service providers 299
affected.
aa) The duty of storage does not cross the boundary of permissibility by reason of the technical effort it 300
requires from the service providers. Since the service providers in question are actors on the
telecommunications market, they must in any case display a high degree of mastery of technology in the
area of the collection, storage and processing of telecommunications data. Even small enterprises in this
sector must have these abilities. In addition, at all events a large part of the data to be stored under § 113a
TKG are in any case temporarily stored by the relevant telecommunications enterprises for their own
purposes. Exacting organisational requirements for the guarantee of data security do not arise merely
from the duty of storage of § 113a TKG, but independently of this from the subject matter of the services
offered by the relevant enterprises. In this respect, the imposition of the specific duties under § 113a TKG
is not disproportionate from a technical and organisational point of view.
bb) Nor is the duty of storage disproportionate with regard to the financial burdens incurred by the 301
enterprises as a result of the duty of storage under § 113a TKG and the duties consequential on this, such
as the guarantee of data security. In particular, this is not unreasonable because as a result private
enterprises would impermissibly be entrusted with state functions. A categorical separation of “state
functions” and “private functions”, with the result that it would be impermissible to commission private
persons for the purposes of public interest at their own cost, cannot be derived from the Basic Law. On the
contrary, the legislature has a broad discretion as to what duties to ensure public interests it will impose on
private persons in their work (see BVerfGE 109, 64 (85)). In principle, it may impose burdens and
measures to safeguard public interests for which legislation is necessary as a result of commercial
activities on the relevant actors in the market, in order in this way to integrate the associated costs in the
market and the market price. Here, the legislature is not restricted to engaging private persons only if their
occupation may directly cause dangers or if they are directly liable for these dangers. Instead, it is
sufficient in this connection if there is a close relationship in subject-matter and in terms of responsibility
between the person’s occupation and the duty imposed (see BVerfGE 95, 173 (187)).
There are therefore no fundamental objections to the cost burdens incurred by the persons with a duty of 302
storage. In this way, the legislature shifts the costs associated with the storage as a whole onto the
market, corresponding to the privatisation of the telecommunications sector. Just as the
telecommunications enterprises can use the new opportunities of telecommunications technology to make
profits, they must also assume the costs of containing the new security risks that are associated with
telecommunications and must include them in their prices. The duties imposed on the enterprises are
closely connected to the services rendered by them and can as such only be performed by themselves. In
addition, it is not the case here that special sacrifices are imposed on individual service providers, but
instead the basic conditions of the provision of telecommunications services are structured in a general
way. It is thus constitutionally unobjectionable if the enterprises then also in principle bear the costs
incurred by this. Reimbursement is not required to be provided merely because the objective relates to the
public interest (see BVerfGE 30, 292 (311)). A statute which governs the practice of an occupation in such
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