Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
the corresponding thresholds of encroachment must here be defined by the legislature in a manner that
relates to a specific area and is precise and consists of well-defined provisions (see BVerfGE 100, 313
(359-360); 110, 33 (53); 113, 29 (51); 113, 348 (375); 115, 166 (191); 115, 320 (365); 118, 168 (186-187)).
The use of the data pools obtained from systematic storage without cause of virtually all 227
telecommunications traffic data is therefore subject to particularly strict requirements. In particular, this use
is not constitutionally permissible to the same extent as the use of telecommunications traffic data which
the service providers are permitted to store under § 96 TKG, depending on the given operational and
contractual circumstances, which can in part be influenced by the customers. In view of the systematic
precautionary storage of traffic data for six months, which is unavoidable and complete and thus results in
increased informative value, their retrieval is incomparably weightier. Since an analysis of these data
permits conclusions that reach deep into private lives, and in certain circumstances makes it possible to
make detailed personality profiles and track users’ movements, it cannot automatically be assumed in this
connection that recourse to these data carries fundamentally less weight than the content-based
monitoring of telecommunications (on retrieval under the old law see BVerfGE 107, 299 (322)). Instead,
the use of such data can also only be seen as proportionate if it serves particularly high-ranking reasons of
public interest. A use of the data may therefore only be considered for overridingly important tasks of the
protection of legal interests, that is, to punish criminal offences which threaten legal interests of paramount
importance or to ward off dangers to such legal interests.
a) From this it follows for the prosecution of crimes that if the data are to be retrieved, there must at least 228
be the suspicion of a serious criminal offence, based on specific facts. Together with the obligation to store
data, the legislature must provide an exhaustive list of the criminal offences that are to apply here. In this,
it has scope for assessment. It may either have recourse to existing lists or create its own list, for example
in order to include criminal offences for which telecommunications traffic data are particularly important.
However, if a criminal offence is to be categorised as serious, this must be objectively expressed in the
statutory definition, in particular, for example, by the range of punishment provided (see BVerfGE 109, 279
(343 et seq., in particular 347-348). But a blanket clause or a mere reference to criminal offences of
considerable significance is not sufficient.
In addition to laying down such a list of criminal offences in abstract terms, the legislature must ensure 229
that recourse to the telecommunications traffic data stored by way of precaution is permissible only if the
criminal offence prosecuted is also serious in the individual case (see BVerfGE 121, 1 (26) and the use of
the data is proportionate; on criminal offences of considerable significance, see BVerfGE 107, 299 (322);
on particularly serious criminal offences within the meaning of Article 13.3 GG, see BVerfGE 109, 279
(346)).
b) The use of the data in question must also be effectively restricted for the purpose of warding off 230
danger. In this connection, permitting access to data with reference to lists of specific criminal offences
which the use of the data is intended to prevent (see BVerfGE 122, 120 (142)) is not a suitable legislative
approach. It removes the clarity from the requirements of the degree of endangerment to legal interests
and leads to uncertainty where the definitions of legal offences penalise even acts preparatory to the
commission of an offence and mere endangerments of legal interests. Instead, a solution might be for
legislation to refer directly to the legal interests whose protection is to justify a use of the data, and to the
degree of danger to these legal interests that must be attained as a threshold of encroachment. Such an
approach corresponds to the character of warding off danger as the protection of legal interests and
guarantees a direct connection to the main objective which is intended to justify the encroachment upon
fundamental rights.
It follows from weighing the encroachment constituted by the storage and use of data and the 231
importance of effective warding off of danger that retrieval of the telecommunications traffic data stored by
way of precaution may only be permitted to ward off dangers to the life, limb or freedom of a person, to the
existence or the security of the Federation or of a Land or to ward off a danger to public safety (see
BVerfGE 122, 120 (141 et seq.)). In this connection, the enabling statute must at least require actual
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