Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
each an individual encroachment upon the secrecy of telecommunications (see BVerfGE 100, 313 (366367)). Consequently, an order to communications enterprises to collect and store telecommunications data
and to transmit them to state agencies is in each case an encroachment upon Article 10.1 GG (see
BVerfGE 107, 299 (313)).
The right arising from Article 2.1 in conjunction with Article 1.1 GG to informational self-determination 191
does not apply in addition to Article 10 GG. In relation to telecommunications, Article 10 GG contains a
special guarantee which overrides the general provision and which gives rise to special requirements for
the data that are obtained by encroachments upon the secrecy of telecommunications. In this context,
however, the requirements which the Federal Constitutional Court has developed from Article 2.1 in
conjunction with Article 1.1 GG may largely be transferred to the more special guarantee of Article 10 GG
(see BVerfGE 100, 313 (358-359)).
2. a) The storage of telecommunications traffic data imposed on the service providers under § 113a.1 192
TKG encroaches upon the secrecy of telecommunications. In the first instance, this applies to the duties of
storage relating to telecommunications services under § 113a.2 to 113a.5 TKG and in conjunction with this
under § 113a.6 and § 113a.7 TKG. The information to be stored under this provision indicates whether,
when, where and how often connections were established or there was an attempt to establish
connections between what telecommunications installations. In particular, this also applies to the storage
of data in the service of electronic mail under § 113a.3 TKG, whose confidentiality is also protected by
Article 10.1 GG (see BVerfGE 113, 348 (383); 120, 274 (307)). The fact that it is technologically easy to
intercept emails does not alter their confidential character and their need for protection. In this connection,
storage of the data relating to the Internet connection under § 113a.4 TKG is also an encroachment upon
Article 10.1 GG. Internet access enables not only communication between individuals, which is protected
by the secrecy of telecommunications, but also participation in mass communication. But since it is not
possible to distinguish between individual and mass communication without referring to the contents of the
information transmitted in each case, which is contrary to the protective function of the fundamental right,
the very storage of the data relating to the Internet access as such is to be seen as an encroachment,
even if they do not contain information on the Internet pages visited (see Gusy, in: v.
Mangoldt/Klein/Starck, GG, vol. 1, 5th ed. 2005, Art.10 , marginal no. 44; Hermes, in: Dreier, GG, vol. 1,
2nd ed. 2004, Art. 10 , marginal no. 39).
The encroaching nature of § 113a TKG is also not called into question by the fact that the storage 193
prescribed by this provision is made not by the state itself, but by private service providers. For these
service providers are merely used by the state authorities as helpers to carry out their duties. § 113a TKG
obliges the private communications enterprises to store data solely in order to carry out the tasks of state
authorities for purposes of the prosecution of criminal offences, the warding off of danger and the
performance of intelligence tasks under § 113b TKG. Under these provisions, the state directly orders the
impairment of fundamental rights associated with the storage, and the enterprises with a duty of storage
have no room for manoeuvre in this connection; the data are to be stored in such a way that requests for
information from the public authorities entitled under § 113a.9 TKG can be complied with without delay.
Under these conditions, the storage of the data is to be legally attributed to the legislature as a direct
encroachment upon Article 10.1 GG (see BVerfGE 107, 299 (313-314)).
b) The provisions on data transmission in § 113b sentence 1 half-sentence 1 TKG also constitute 194
encroachments upon fundamental rights in Article 10.1 GG. Admittedly, in itself this provision does not
permit a use of the data stored under § 113a TKG, but refers to further statutory retrieval provisions which
are to be separately created. However, it does contain the fundamental specification of the purposes for
which the data may be used. In this respect, it releases the telecommunications enterprises from the duty
of confidentiality to which they are otherwise subject. Ultimately, the final overall regulation of the use of
the data is created only by the graduated meshing of provisions on various levels of legislation, but this
does not alter the fact that the definition of the purposes of use and the permission to transmit data are
part of the regulation of use and thus have the nature of an encroachment. Here too it is irrelevant that §
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