Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
citizen a regular possibility of avoiding storage. Instead, the legislature attempts fundamentally to provide
for all telecommunications connections in such a way that the users can be determined as extensively as
possible.
The informative value of these data is extremely broad. Depending on the use of the telecommunications 211
services by the persons affected, a high degree of knowledge of the social environment and the individual
activities of each citizen may be obtained even from the data themselves – and all the more if the data are
used as starting points for further investigations. Admittedly, storage of telecommunications traffic data, as
provided for in § 113a TKG, records only the connection data (time, duration, connections involved and –
in the case of mobile telephony – location), but not in addition the contents of the communication.
However, it is possible to draw conclusions with regard to contents that extend into the private sphere
even from these data, if they are subjected to comprehensive and automated analysis. If recipients (the
particular occupational groups, institutions or interest groups they belong to or the services they offer),
dates, times and places of telephone conversations are observed for a long period of time, then in
combination they permit detailed conclusions on social or political affiliations and personal preferences,
inclinations and weaknesses of the persons whose connection data are analysed. There is no protection
of confidentiality in this connection. Depending on the use of the telecommunications, and in future with
increasing frequency, such storage can make it possible to create meaningful personality profiles and
mobility profiles of virtually all citizens. In relation to groups and associations, the data also, in certain
circumstances, may make it possible to reveal internal influence structures and decision-making
processes.
Storage which fundamentally makes such uses possible and in particular cases is intended to make 212
them possible constitutes a serious encroachment. In this connection, it is also significant that,
independent of a legislative approach to the use of data of whatever nature, the risk of citizens
considerably increases of being exposed to further investigations without themselves having given
occasion for this. For example, it is enough to have been in a particular radio cell, or to have been
contacted by a particular person, at an inconvenient time, for a person to be exposed to wide-ranging
investigations and to come under pressure to give explanations. In addition, the possibilities of abuse that
are associated with such a collection of data aggravate its burdensome effect. This is particularly the case
in view of the large number of varying private providers which store telecommunications data. Merely in
view of the number of persons with duty of storage, the number of those who have and need to have
access to such data is large. Since the duty of storage also affects small service providers, protection
against abuse, notwithstanding all possible and necessary efforts of the legislature, has structural limits in
view of the economic efficiency of those service providers. This is aggravated by the fact that the
standards imposed on data management and the transmission of the data to the authorities require a high
degree of technological competence and sophisticated software, and this inevitably entails the danger of
weak points and the risk of manipulation by interested third parties. Particular weight also attaches to the
storage of the telecommunications data because the storage itself and the intended use of the stored data
are not directly noticed by the persons affected, but at the same time they include connections which are
engaged in with an expectation of confidentiality. As a result of this, the storage of telecommunications
traffic data without cause is capable of creating a diffusely threatening feeling of being watched which can
impair a free exercise of fundamental rights in many areas.
b) Despite its extremely broad range and the weight of the encroachment associated with it, the 213
legislature is not absolutely prohibited under constitutional law from introducing a six-month duty of
storage, as provided for in § 113a TKG. However, under the established case-law of the Federal
Constitutional Court, the state is strictly prohibited under constitutional law from creating a collection of
personal data by way of precaution and retaining it for purposes that are indefinite or that cannot yet be
determined (see BVerfGE 65, 1 (46); 100, 313 (360); 115, 320 (350); 118, 168 (187)). The precautionary
storage without cause of telecommunications connections data is not in every case such a form of data
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