Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Through the Act for the Amendment of Telecommunications Surveillance and Other Measures of 322
Undercover Investigation and for the Implementation of Directive 2006/24/EC, the legislature
fundamentally changed the system of the methods of undercover investigation under the law of criminal
procedure. In doing so, it proceeded with great care, relying on expert opinions requested by it, on an
extensive discussion among legal scholars, and also on empirical reports from the public prosecution
authorities and police authorities (see Bill, Bundestag printed paper 16/5846, p. 1). Detailed hearings of
experts took place in the parliamentary procedure (see the records of the 73rd and 74th meeting of the
German Bundestag’s Committee on Legal Affairs, 16th electoral term, on 19 and 21 September 2007).
Moreover, it was intended to implement the Federal Constitutional Court’s case-law existing to date.
Finally, the Act was approved by a very broad majority (see Minutes of plenary proceedings of the German
Bundestag, 16th electoral term, 124th session on 9 November 2007, p. 13009 (D); see also the speech by
Federal Minister of Justice Brigitte Zypries introducing the bill, loc. cit. , Minutes of plenary proceedings pp.
12994-12995). The legislature intended to take new technical developments into consideration because it
considered precisely the measures at issue here particularly effective in the investigation especially of
crime that is difficult to investigate, of transaction crime, white-collar crime and criminal offences
committed using modern communication technologies (see Bill, Bundestag printed paper 16/5846, p. 2).
Furthermore, it was [the legislature’s] declared goal to take account of the irrefutable needs of an effective,
constitutional administration of criminal justice, whose task it is to achieve justice and legal peace within
the limits that are set to it. This goal cannot be achieved unless the facts necessary for the investigation
can be ascertained (loc. cit. , p. 22). In this connection, the legislature assumed that telecommunications
traffic data above all, because of the technical development towards more flat-rate connections – and
unlike in the past, when especially call data regarding telephony were available for many months –are
either not stored at all or are deleted before a judge’s order for the issuing of information can be obtained,
or even before the information necessary for an application for such an order has been ascertained (loc.
cit. , p. 27). Apart from this, it is generally known that criminal offences are committed on and through the
Internet itself. Reality in society, which includes the existence of crime, is reflected also in this context in
the different branches of telecommunication. If the legislature reacts on this, but if what is necessary
according to its assessment is only possible in an efficient manner if the corresponding traffic data are
subject to an obligation of storage for a certain period of time which the legislature imposes on the service
providers, this is essentially not inappropriate, and it is reasonable for the subjects of fundamental rights
whose data are concerned. Such provision exists in other areas of the legal system as well, for example,
without this being directly comparable, in the field of the obligations of residents to register or as regards
the retention of what is known as master account data by the banks (on this see § 24c of the Banking Act
(Kreditwesengesetz – KWG); BVerfGE 118, 168).
The activity report 2008/2009 of the Federal Network Agency, which shows the development of the 323
number of different types of access to voice and other data communication in recent years, confirms in a
certain way that the approach chosen by the legislature is not unbalanced. The report impressively proves
the enormous rates of increase of lines but above all of the volumes of speech and data exchanged in the
network. It proves that a fundamental change of the communicative behaviour of people has taken place
in recent years (see loc. cit., for example p. 38 on digital subscriber lines, p. 50 on the subscriber
development in mobile telephone networks, p. 53 on the speech volume in mobile telephone
communication and the rates of increase in flat rate billing, p. 59 on the volume of traffic via broadband
lines).
Under these circumstances, the legislature, in order to protect the legal interests of the victims of criminal 324
offences, essentially cannot be denied taking the effectiveness of the means provided by it into
consideration and to adapt to the changed situation also by obliging the service providers to store and
retain traffic data in their sphere for a certain period of time. In this context, the state bodies’ keeping pace
with technical progress cannot merely be seen as something which rounds off the arsenal of methods of
criminal investigation in a sensible manner, and which complements conventional investigation methods
that remain effective; instead, it must be seen against the backdrop of the shift of conventional forms of
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