Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
monitored” and of a “diffuse sense of threat”. Moreover, storage does not take place secretly but on the
basis of a law that has been made public. The object of the storage is not the contents of acts of
telecommunication. Insofar as the traffic data, to a limited extent, also permit conclusions regarding such
contents or even make it possible to track people’s movements or to create social profiles, this concerns
the issue of the proportionality of the corresponding provisions on access and of the compliance with the
requirements of proportionality on the level of the application of the law. The fact that such uses, which
can constitute an intensive encroachment in individual cases, are possible if sufficiently weighty reasons
exist does not justify attaching to such uses, which in an overall assessment prove to be exceptional
cases, decisive importance in the weighting of the storage and to unrestrictedly base the weighting on
them.
In its judgment of 12 March 2003 (BVerfGE 107, 299 (322)) on the delivery of telecommunications 314
connection data which referred to telephone calls, the Senate already emphasised that the weight of the
encroachment – in that case, of the encroachment caused by the data retrieval – was minor than that of
telephone surveillance related to the contents of communication but that it was nevertheless high. It is true
that the circumstances of the present case are special as regards the far-reaching effects and the
precautionary character of the obligation to store data. However, when the encroachment is weighted, a
perceptible distance must be observed to particularly serious encroachments such as those that occur in
the acoustic surveillance of living quarters, in the online search of IT systems, but also in the monitoring of
the contents of telecommunications and their evaluation by the direct access of state bodies ; in the case
of these encroachments, there is a particular risk that the core area of private life, which enjoys absolute
protection, is affected, something which is not the case with the encroachments dealt with here. However,
from the perspective of the individual subject of fundamental rights who is affected, the collection of the
traffic data of all telecommunications contacts by the private service providers without state authority
gaining knowledge of them, and the possibility of their retrieval, which is provided separately under strict
substantive preconditions, retrieval which, as a general rule, is revised, on the level of the application of
the law, by the judge ordering the storage and is strictly limited, and takes place under procedural
safeguards such as the ones provided for data collection pursuant to § 100g StPO, do not constitute an
encroachment upon fundamental rights encroachment which is of such weight that it would be justified to
classify it as “particularly serious” and thus as one of the greatest encroachments on the fundamental right
which are imaginable. What remains, accordingly, is an encroachment due to the storage by the private
service provider which can be characterised as particularly weighty. This differentiation attains its ulterior
significance with regard to the review of the appropriateness of the challenged provisions.
II.
In derogation of the Senate majority’s assessment, the challenged provisions on the duty to store traffic 315
data and to collect them for purposes of the prosecution of criminal offences are not inappropriate, and
they are reasonable for the persons affected and thus proportionate in the narrow sense.
1. The provisions take sufficient account of the precept of appropriateness and of reasonableness as a 316
result of the principle of proportionality. On the basis of an overall weighing of the seriousness of the
encroachment upon Article 10.1 GG and the weight of the reasons that justify it, it becomes apparent that
the legislature has respected the limits resulting from this precept.
The precept of proportionality in the narrow sense requires that in an overall assessment, the 317
seriousness of the encroachment may not be out of proportion to the weight of the reasons justifying it
(see BVerfGE 90, 145 (173); 92, 277 (327); 109, 279 (349 et seq.); 115, 320 (345)). In the conflicting
relationship between the state’s duty to protect legal interests and the individuals’ interest in the
safeguarding of their rights guaranteed by the constitution, it is the initial task of the legislature to proceed
in an abstract manner and achieve a balance between the conflicting interests (see BVerfGE 109, 279
(350); 115, 320 (346)). In doing this, it has latitude for assessment and drafting, something the majority of
the Senate also essentially assumes according to its choice of terminology.
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