Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
pursuant to §§ 95 and 111 to the extent that this is necessary for the prosecution of
criminal or regulatory offences, to ward off dangers to public security or order or to
perform the statutory duties of the authorities of the Federation and the Länder for
the protection of the constitution, of the Federal Intelligence Service and of the
Military Counterintelligence Service. The person obliged to give information pursuant
to sentence 1 shall give information about data which protect the access to terminal
devices or to storage systems employed in such devices or in the network, in
particular PINs or PUKs, on the basis of a request for information made pursuant to
§ 161.1 sentence 1, § 163.1 of the Code of Criminal Procedure, to the provisions on
data collection of the police laws of the Federation or of the Länder to ward off
dangers to public security or order, to § 8.1 of the Federal Act on Protection of the
Constitution, to the relevant provisions of the Land Acts on Protection of the
Constitution, to § 2.1 of the Federal Intelligence Service Act or § 4.1 of the Military
Counterintelligence Service Act; these data may not be transmitted to other public or
non-public agencies. Access to data which are subject to the secrecy of
telecommunications is only possible under the prerequisites of the statutory
provisions which are relevant in this respect. The person obliged to give information
shall observe secrecy about the provision of information towards his customers and
towards third parties.
(2) …
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c) § 100g.1 sentence 1 StPO provides for the collection of telecommunications data for purposes of the
prosecution of criminal offences. According to the provision, the criminal prosecution authorities can in the
first instance access traffic data which the telecommunications enterprises have stored on the basis of
§ 96 TKG; this was already possible according to § 100g StPO, old version. Apart from this, § 100g StPO
now also permits the collection of the data stored by way of precaution pursuant to § 113a TKG. This is
challenged by the constitutional complaints in the proceedings 1 BvR 263/08 and 1 BvR 586/08.
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In detail, § 100g.1 sentence 1 StPO permits the criminal prosecution authorities, with reference to § 113a
TKG to collect traffic data without the knowledge of the person concerned to the extent that this is
necessary for the investigation of the facts or the establishment of the whereabouts of the suspect. This,
however, only applies if specific facts create the suspicion that a person, as perpetrator or accessory, has
committed a criminal offence that even in an individual case is of substantial importance, in particular a
criminal offence listed in § 100a.2 StPO, or has committed a criminal offence preparatory thereto or, as
perpetrator or accessory, has committed an offence by means of telecommunications.
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Pursuant to § 100g.2 sentence 1 in conjunction with § 100b.1 sentences 1 and 2 StPO, the data
collections may only be ordered by a judge unless in case of imminent danger. According to § 100g.2
sentence 1 in conjunction with § 100a.3 StPO, the order may only be directed against the accused or
against persons of whom it must be assumed due to specific facts that they receive or transmit specific
messages directed to the accused or originating from him or that the accused uses their line.
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In case of offences committed by means of telecommunications, the collection of traffic data is, pursuant
to § 100g.1 sentence 3 StPO, permissible only if the investigation of the facts or the establishment of the
whereabouts of the suspect would be impossible in another way and the collection of the data is in a
reasonable proportion to the importance of the matter. The legislature regarded this restriction as
necessary for reasons of proportionality because it took the view that all in all, the intensity of the
encroachment resulting from the collection of traffic data had increased due to the expansion of the data
volume in connection with the obligation to store data pursuant to § 113a TKG (see Bundestag printed
paper 16/5846, p. 52).
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https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
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