Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
established case-law of the Federal Constitutional Court, consideration might well have been given to
fixing a time limit for the legislature to pass new legislation and to holding that the existing provisions could
provisionally continue in effect in conformity with the stipulations of the temporary injunctions granted by
the Senate. For the Senate grants the legislature the possibility of providing for an obligation to store traffic
data for six months and also of passing provisions on access, under the preconditions specified in the
judgment, which essentially comply with the requirements made in the temporary injunctions. The
stipulations of the judgment mainly differ from those of the temporary injunctions merely by establishing
higher requirements with regard to data security and by demanding further-reaching obligations of
notification. With a view to the weighing, the Federal Constitutional Court’s frequent practice suggests to
refrain at first from pronouncing a declaration of nullity and not to regard it as imperative to only permit, for
the time being, the access to data of the service providers which still exist for technical or billing reasons.
Thus considerable shortcomings in warding off danger and in the investigation even of serious criminal
offences will have to be feared, and are tolerated, until the enactment of a new provision. Reference is
made to the grounds of the temporary injunctions issued by the Senate and to the weighing made therein.
In addition, the service providers must stay their measures implementing the challenged regulation and
restore the previous situation, once the new, amended law will have been enacted, something which is
required already under Community law, they will have to make considerable effort to create the
requirements once again.
Schluckebier
Dissenting opinion of Justice Eichberger
to the judgment of the First Senate of 2 March 2010
– 1 BvR 256/08 –
– 1 BvR 263/08 –
– 1 BvR 586/08 –
I do not agree with the decision of the Senate majority with regard to part of the result of the judgment 337
and with regard to essential elements of the reasoning. Basically, I agree with Justice Schluckebier’s
critcism of them, and I agree with most of his opinion concerning the conclusion and the reasoning. In the
following, I can therefore restrict myself to giving a brief account of the considerations that are essential for
my point of view:
1. Also in my view, the statutory order to store the telecommunications traffic data is a weighty 338
encroachment upon Article 10.1 GG in view of its broad and comprehensive character in terms of the staff
and resources involved, in view of the fact that it takes place without a cause and in view of the
considerable length of time of the prescribed data retention. As, however, the obligation to store data is
restricted to the traffic data and does not cover the contents of the acts of telecommunication, and as it
takes place in a decentralised manner by the service providers, the encroachment that goes along with the
storage does not have the overriding importance that is generally attributed to it by the majority of the
Senate. In view of the legislative concept of the data storage, which rules out a free access by state
authorities on the traffic data stored in a decentralised manner by the private service providers, and which
provides for strict barriers in terms of content and with regard to the law of procedure – in particular a
substantial requirement of judicial authority – to data retrieval or, in my view, has to be amended by such
statutory requirements, I regard the fear expressed by the majority of the Senate of an intimidating effect
on the communication behaviour of the population as unfounded, at any rate as not empirically proven.
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