Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
respective legal area. As a matter of course, both provisions are subject to the constitutional requirements
and constitutional review, if necessary, even as regards their interaction. Even if in relation to a Land
legislature, the Federal legislature bears the responsibility of the storage of the traffic data, a possible
provision under Land law which complements it must also comply with the constitution. Thus, no
deficiency can occur as results legal protection.
Accordingly, there was no reason here to also deal, apart from the criminal-law provision on access 329
under § 100g StPO, which was challenged in part by the constitutional complaints, with the details of the
requirements of the use of the traffic data for warding off danger and for intelligence-service purposes.
4. Finally, the Senate refuses the legislature the right to retrieve the traffic data to investigate criminal 330
offences that are not contained in the present list under § 100a.2 StPO but that are nevertheless of
substantial importance in the individual case, and offences that are committed by means of
telecommunications (§ 100g.1 sentence 1 nos. 1 and 2 StPO). In doing so, it also does not give due
account to the weight of the possible offences and – to the extent that the legislature has considered them
difficult to investigate – to the importance of the data for an effective investigation of criminal offences.
With regard to no. 1 of § 100g.1 sentence 1 StPO, the legislature was guided by criteria which the Senate
approved in its judgment of 12 March 2003 (BVerfGE 107, 299 (322)) on the release of
telecommunications connection data. The Senate emphasised there that such encroachment is only
justified with criminal offences to which the legislature generally attaches special weight and which are of
substantial importance in the specific case, for example due to the damage caused and the degree of
threat to the general public. I do not see that the threshold of encroachment which the Senate did not
object to there would have to be weighted in a fundamentally different manner with regard to access to
what is known as retained traffic data. In the combination of circumstances at issue there, the review of
constitutionality in the individual case is incumbent on the judge ordering access; the judge has to include
the weight of the access on the traffic data in the respective case in the weighing and has to limit it by the
drafting of the order.
With regard to offences committed by means of telecommunications, for which the Senate would like to 331
have ensured that access to the traffic data which are stored according to § 113a TKG is excluded as well,
insufficient weight is attached to the fact that the legislature assumes substantial difficulties in investigation
here. Apart from the particular weight of the offence to be investigated, also those difficulties may make
the retrieval of retained traffic data seem appropriate, especially if, as is the case here, the legislature has
provided the conditions for retrieval with a strict subsidiarity clause according to which the measure is
permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect in
another way would be impossible or considerably more difficult and if the collection of the data is in a
reasonable proportion to the importance of the matter even in the individual case (§ 100g.1 sentence 2
StPO).
Since it is the duty of the legislature to guarantee effective criminal prosecution and not to permit any 332
substantial gaps in protection, the legislature may not be denied also giving access to the traffic data in the
case of offences that may not be particularly serious if the legal interest injured is nevertheless of
particular importance, because in its estimation this is the only way to prevent de facto legal vacuums and
a situation where investigation is largely ineffective. Here, the legal offence of stalking, for example, may
be cited as an example (§ 238.1 no. 2 StGB, “cyberstalking“); in this context, the traffic data are often the
only investigative lead to verify statements in a situation in which it is one person’s word against another’s,
but also to identify a perpetrator who is unknown at first. Here the possibility of using a telephone trap is
helpful only to a limited extent because it does not cover the email traffic and ultimately depends on the
service providers’ goodwill. Something similar applies to the offence of threatening the commission of a
felony, above all, however, to the area of internet fraud, which, according to the crime statistics compiled
by the police, involves a considerable number of cases. Finally, access to traffic data may be a
consideration also with regard to other offences (§ 202a to 202c StGB, data espionage and phishing; see
also §§ 269, 303a, 303b StGB, forgery of data intended to provide proof, data tampering, computer
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