Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
Papier
Gaier
Kirchhof
Hohmann-Dennhardt
Eichberger
14.08.20, 10:44
Bryde
Schluckebier
Masing
Dissenting opinion of Justice Schluckebier
to the judgment of the First Senate of 2 March 2010
– 1 BvR 256/08 –
– 1 BvR 263/08 –
– 1 BvR 586/08 –
Due to the considerations outlined below, I cannot agree with the decision as regards its result and large 310
parts of its reasoning.
The Senate holds that the storage of the traffic data has the effect of a particularly serious encroachment 311
upon the fundamental right under Article 10 GG. In my view, particular weight must indeed be attributed to
such an encroachment; as compared to content-related surveillance measures, however, it proves to be
considerably less serious (on this, see I.). In view of the objectives pursued by the legislature, in particular
the investigation of criminal offences that even in an individual case are of substantial importance or have
been committed by means of telecommunications but are difficult to investigate, I furthermore regard the
encroachment caused by the storage of the traffic data and by the provisions on access under the law of
criminal procedure as fundamentally justified under constitutional law. In my view, the provisions on which
the encroachment is based essentially stand up to a review of proportionality in the narrow sense, and
especially to a review of appropriateness and reasonableness (on this, see II.). Merely the requirements in
terms of content placed on the guarantee of the data security of the telecommunications traffic data to be
stored and transmitted are excluded from this; in this respect, I concur with the majority of the Senate,
without taking up this aspect again in the following. As regards the pronouncement of the legal
consequences, the challenged provisions should, on the basis of the Senate majority’s evaluation, not
have been declared void in my view; in accordance with the temporary injunctions issued by the Senate,
they should have been regarded as applicable until the adoption of new provisions (on this, see III.).
I.
The majority of the Senate considers the storage of the traffic data by the service providers for a period 312
of six months as a particularly serious encroachment upon the fundamental right of Article 10.1 GG. I do
not agree with this weighting.
The secrecy of telecommunications protects the contents and the circumstances of the act of 313
communication against state authority gaining knowledge of them (see BVerfGE 100, 313 (358); 106, 28
(37); 107, 299 (312-313)). If the private service providers’ obligation to store data (§ 113a TKG) is ascribed
the nature of an encroachment because the service providers are “helpers of the state” and the storage
must therefore be attributed to the state, the circumstance that before a possible access by state
agencies, the data exclusively remain in the sphere of the private service providers attains special
importance for the assessment of the intensity of the encroachment. The data are in the hands of the party
to the contract on which those who make use of the services place the fundamental confidence, which
must be assumed where contracts of this kind are concluded, that this party will treat the data that arise for
operational reasons and for billing with strict confidence and guarantee their protection. If, furthermore, an
appropriate, state-of-the-art level of data security is guaranteed, there is thus also no objectifiable basis for
the assumption that the citizen could feel intimidated as a result of the storage, which would increase the
intensity of the encroachment, or, in the words of the judgment, of a “sense of being permanently
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