Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
contained in this, storage of telecommunications traffic data without cause is not as such automatically
covered by the strict prohibition of data retention within the meaning of the case-law of the Federal
Constitutional Court (see BVerfGE 65, 1 (46-47). 115, 320 (350); 118, 168 (187)).
1. Making criminal prosecution, warding off danger and performing the tasks of the intelligence service 206
more effective is a legitimate purpose, which can in principle justify encroachment upon the secrecy of
telecommunications (see BVerfGE 100, 313 (373, 383-384); 107, 299 (316); 109, 279 (336); 115, 320
(345)). In this connection, the fact that the telecommunications traffic data are to be secured without cause
by way of precaution does not automatically constitute an illegitimate objective which cancels the very
principle of liberty of Article 10.1 GG. Article 10.1 GG does not prohibit every collection and storage of
data whatsoever, but gives protection against a disproportionate organisation of such data collections, and
in this connection in particular against boundary-expanding objectives. Only the precautionary storage of
personal data for purposes that are indefinite and cannot yet be determined is strictly prohibited (see
BVerfGE 65, 1 (46); 100, 313 (360)). However, only exceptionally is the precautionary storage of data
permissible. Both its justification and its formulation, in particular also with regard to the envisaged
purposes of use, are subject to especially strict requirements.
2. The legislature may regard as suitable to obtain its objective a precautionary storage of 207
telecommunications traffic data without cause for later transmission with cause to the authorities
responsible for criminal prosecution or warding off danger or to the intelligence services. This creates
possibilities of detection which would otherwise not exist and in view of the increasing importance of
telecommunications are promising in many cases also for the preparation and commission of criminal
offences. It is irrelevant whether the provisions created by the legislature are capable of seamlessly
reconstructing all telecommunications connections. Even though such a storage of data cannot ensure
that all telecommunications connections can reliably be assigned to specific users, and it may be possible
for criminals to circumvent storage by using Wi-Fi hotspots, Internet cafés, foreign Internet telephone
services or prepaid mobile telephones registered under a false name, this cannot be cited to show that
such a provision is not suitable. Suitability does not demand that the goal of the legislation is actually
attained in every single case, but merely requires that the attainment of the goal is facilitated (see
BVerfGE 63, 88 (115); 67, 157 (175); 96, 10 (23); 103, 293 (307)).
3. The legislature may also treat a six-month storage of the telecommunications traffic data as 208
necessary. There are no less drastic means apparent that would enable similarly broad detection
possibilities. In particular, the procedure known as data preservation or quick freeze is inferior with regard
to effective detection; in this, the general storage of telecommunications data without cause is replaced by
storage only in the individual case, which is not ordered until the date when there is concrete cause for it,
for example on the basis of a particular suspicion of a criminal offence. Such a procedure, which can only
cover data from the time before they were ordered to be stored if they are still available, is not as effective
as continuous storage, which guarantees the existence of a complete set of data for the last six months.
4. Nor is storage of telecommunications traffic data for six months to an extent as provided in § 113a 209
TKG disproportionate in the narrow sense from the outset.
a) Admittedly, such storage constitutes a particularly serious encroachment with a broader range than 210
anything in the legal system to date: throughout the whole six-month period, virtually all
telecommunications traffic data of all citizens are stored, without a connection to culpable conduct
attributable to them, or to a dangerous situation – even a merely abstract one –, or to a situation otherwise
qualified. This storage relates to everyday actions which are a basic part of day-to-day interaction and
which are now indispensable for taking part in social life in the modern world. Fundamentally, no form of
telecommunications is as a matter of principle excluded from storage. Admittedly, the provision ultimately
leads to occasional gaps, which prevent every telecommunications connection without exception from
being reconstructed with individual details, for example in certain circumstances in the use of Wi-Fi
hotspots, complex private networks or service providers outside the EU. However, this does not give the
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
Seite 22 von 53