Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
collection forbidden from the outset. Instead, if it is done for specific purposes, such a storage, as part of a
statutory structure which is adequate to the encroachment (see V below), may also satisfy the
requirements of proportionality in the narrow sense.
aa) The first relevant factor for this is that the storage of the telecommunications traffic data provided is 214
realised not directly by the state, but by a duty imposed on the private service providers. In this way, the
data are not yet combined at the time of storage itself, but remain distributed over many individual
enterprises and are not directly available to the state in their entirety. In particular, the state has no direct
access to the data; this must be ensured by appropriate legislation and technical precautions. The retrieval
of the data by state agencies is done only in a second stage, and then related to a specific occurrence, in
accordance with criteria to be legally defined in more detail. In this connection, the formulation of the
provisions giving permission for retrieval and further use of the stored data may ensure that the storage is
not made for purposes that are indefinite or cannot yet be determined. Thus, if such a duty of storage is
imposed, it can and must be guaranteed that an actual taking notice and use of the data remains limited
by well-defined provisions in a manner that takes account of the weight of the extensive collection of data
and that restricts the retrieval and the actual use of the data to the part of the data pool that is absolutely
necessary. At the same time, the separation of storage and retrieval structurally promotes the
transparency and supervision – to be guaranteed in more detail by legislative drafting – of the use of the
data.
bb) Nor does a six-month storage of the telecommunications traffic data in itself cancel the principle of 215
Article 10.1 GG; it violates neither that Article’s core of human dignity (Article 1.1 GG) nor its essence
(Article 19.2 GG). Despite its extraordinary breadth, it remains effectively limited. Thus, for example, the
contents of the telecommunications events are excluded from the storage, which is restricted to the traffic
data. In addition, the duration of the storage is restricted. Admittedly, a period of six months’ storage is
very long, in view of the extent and informative value of the stored data, and it is at the upper limit of what
can be justified from the point of view of proportionality. After the end of this period, however, citizens may
rely on their data being deleted – unless they have exceptionally been retrieved for cause – and no longer
being reconstructible by anyone.
cc) Nor does storage of the telecommunications traffic data for six months appear to be a measure 216
directed towards total recording of the citizens’ communications or activities as a whole. Instead, it takes
up, in a manner still limited, the special significance of telecommunications in the modern world and reacts
to the specific potential danger associated with this. The new means of telecommunications overcome
time and space in a manner that is not comparable with other forms of communication, and that
fundamentally excludes public awareness. In this way, at the same time, they facilitate concealed
communications and actions of criminals and also enable scattered groups of only a few persons to form
and to cooperate effectively. The communication, which is virtually without resistance, enables knowledge,
readiness to act and criminal energy to be combined in a way that confronts warding off danger and
criminal prosecution with novel tasks. Some criminal offences are committed directly with the help of the
new technology. Integrated into a conglomeration of computers and computer networks which
communicate with each other only through technology, such activities largely escape observation. At the
same time, they can create new kinds of dangers, for example by attacks on third-party
telecommunications. For effective criminal prosecution and warding off of danger, therefore, a
reconstruction of telecommunications connections is of particular importance.
Another problem is that because telecommunications data are not publicly perceptible, there is also no 217
social memory, unlike in other areas, which would permit past events to be reconstructed on the basis of
chance memories. Telecommunications data are either deleted, after which they are completely lost, or
stored, after which they are completely available. Consequently, in the decision as to how far such data
are to be deleted or stored, the legislature may undertake a balancing of interests and take account of the
concerns of state performance of duties. In this process, it may also include in its considerations the fact
that the popularity of particular forms of contract used by telecommunications services providers (such as
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