Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
7. Apart from this, opinions were submitted by the Verband der Anwender geschäftlicher 173
Telekommunikation e.V. (TELECOM e.V.), the Börsenverein des Deutschen Buchhandels e.V. and the
Bundesverband Musikindustrie e.V.
IV.
In the oral hearing, statements were made by: the complainants, the Federal Government, the Federal 174
Criminal Police Office, the Federal Network Agency, the Government of the Free State of Bavaria, the
Federal Commissioner for Data Protection and Freedom of Information, the Commissioner for Data
Protection and Freedom of Information of the Land Berlin; as experts, Prof. Dr. Dr. h.c. Hans-Jörg
Albrecht, Ms Constanze Kurz, Prof. Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr. Alexander
Roßnagel, Prof. Dr. Christoph Ruland, the Bundesverband Informationswirtschaft, Telekommunikation und
neue Medien e.V. (BITKOM), the Verband der deutschen Internetwirtschaft e.V. (eco), the Verband der
Anbieter von Telekommunikations- und Mehrwertdiensten e.V. (VATM), the Börsenverein des Deutschen
Buchhandels e.V. and the Bundesverband Musikindustrie e.V. were heard.
B.
The constitutional complaints are admissible.
175
I.
1. The complainants admissibly challenge a violation of Article 10.1 GG. They use different 176
telecommunications services such as in particular telephone services, electronic mail and Internet services
for private and business purposes, and they put forward that the storage and intended use of their
connection data violates their fundamental right to respect of the secrecy of telecommunications. As
Article 10.1 GG also protects the confidentiality of the circumstances of acts of telecommunication (see
BVerfGE 67, 157 (172); 85, 386 (396); 120, 274 (307); established case-law), such a violation by the
challenged provisions is possible.
The challenged provisions also affect the complainants directly, personally and presently. It is true that 177
the obligation to store data under § 113a TKG does not address the complainants, who are affected as
users, but the service providers. The latter, however, are unconditionally obliged, without any margin for
decision, to store the complainants’ data (see BVerfGE 107, 299 (313-314)). § 113a TKG thus directly and
presently results in the storage of data of the complainants for the purposes provided for in § 113b
sentence 1 TKG.
It also cannot be maintained that the complainants are not affected directly and personally with regard to 178
§ 113b TKG und § 100g StPO merely because the provisions only have an effect on the basis of further
acts of execution and because it is not yet certain whether and to what extent data of the complainants will
be affected. If the person affected does not gain knowledge of the acts of execution, it is sufficient to
submit that he or she will with some probability be affected by such measures. What is decisive in this
context is whether the measures have a wide range and can cover third parties incidentally (see BVerfGE
109, 279 (307-308); 113, 348 (363); 120, 378 (396-397)). Accordingly, the complainants have sufficiently
shown that they are personally and directly affected. With regard to the considerable length of storage of
six months, and the wide range of the collected data, it is not improbable that the transmission and the use
of the data according to § 113b TKG and § 100g StPO also affects persons who have not given occasion
to such measures. Statements by which the complainants themselves would have to charge themselves
with a criminal offence are thus not necessary to substantiate their being personally affected (see BVerfGE
109, 279 (308); 113, 348 (363); 120, 378 (396-370)). They also do not have to state that they are
responsible for substantial dangers to public security or engage in activities that affect the duties of the
intelligence services.
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