Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Therefore, in my opinion, the essential burdening effect on the interest protected by Article 10.1 GG for 339
the citizens that results from the ordering of the data storage is first and foremost due to the potential
danger, emanating from this large collection of data, of abuse by the service providers themselves or by
unauthorised third parties or of excessive use by prosecution or police authorities. Precautions must be
taken against this. I therefore unreservedly agree with the view taken by the majority of the Senate
concerning the standards for sophisticated data security to be prescribed to the service providers by the
legislature. I also essentially agree with most of the other safeguards under procedural law for data
storage, data retrieval and the further use of the data (obligations to delete data and obligations of
recording, requirements concerning transparency and legal protection) which the majority of the Senate
considers necessary; according to my assessment, however, the requirements which the majority of the
Senate places on the legislature in this context are too detailed in many respects and do not take sufficient
account of the discretion which the constitution grants the legislature also in this context.
2. Unlike the majority of the Senate, and concurring with Justice Schluckebier, I am of the opinion that 340
the legislative concept on which §§ 113a, 113b TKG are based, creating a sliding scale of legislative
responsibility for the order of storage and the retrieval of data, is fundamentally in conformity with the
constitution. In the context of this concept, § 113b TKG does not establish an independent encroachment
upon Article 10.1 GG that goes beyond the order of data storage in § 113a TKG. Instead, the provision
contains the constitutionally required determination of the purpose of the storage of the traffic data. Only
the statutory authorisation granted elsewhere to retrieve data, which is provided in § 113b sentence 1
TKG, results in a new encroachment upon Article 10.1 GG that goes beyond the significance of the data
storage performed until then. In this manner, the Federal legislature, with § 113b TKG, leaves the
legislature of the Federation or of the Länder that is competent for the respective area the authorisation,
which is due to it by virtue of its constitutional and democratic legitimisation, to decide whether and to what
extent it will access telecommunications traffic data for purposes of the prosecution of criminal offences, to
ward off danger or for the duties of the intelligence services. In doing so, the respective legislature, as a
matter of course, must respect on its own responsibility the constitutional boundaries of a proportionate
access to the traffic data.
This does not constitute an order of collecting data to keep them in reserve for undetermined purposes, 341
which would be constitutionally impermissible. While obliging the service providers in § 113a TKG to store
data, the Federal legislature specified in § 113b TKG the purposes for which the stored data may be used.
The responsibility, which the Federal legislature assumed by ordering the data storage, for the potential
danger thus created to the detriment of the citizens in my view requires however, and in this I agree with
the starting point of the opinion of the Senate majority, not only a fundamental outline of the purpose of
use but also the determination of at least a minimum threshold of interference; such a threshold has been
provided with regard to the prosecution of criminal offences in § 113b sentence 1 no. 1 TKG in conjunction
with § 100g.1 StPO, which has been adopted at the same time, and has been described using the term
“substantial dangers” in § 113b sentence 1 no. 2 TKG with regard to the warding off of dangers but has not
been provided in a similar manner with regard to the performance of the duties of the intelligence services.
An amendment to this effect would be required here. However, I do not regard a detailed and final
determination of the purposes of use which the majority of the Senate demands from the Federal
legislature to be made at the same time as the order of the data storage as constitutionally required.
3. Finally, and above all, I cannot agree with the result of weighing reached by the majority of the Senate 342
to the extent that it regards the use of the data stored under § 113a TKG, which is governed by § 100g
StPO, for purposes of criminal prosecution as unconstitutional. The reason for this is, firstly, that the
majority of the Senate, already in the starting point of its considerations, attaches, in my opinion, too much
weight to the encroachment upon Article 10.1 GG caused by the ordering of the data storage and, in
contrast, too little importance to the justified interest of the general public and of the individual citizens in
an effective prosecution of criminal offences and in an effective warding off of dangers. Moreover, it places
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