Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
aa) § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO does not satisfy the particularly 278
stringent requirements which must be satisfied for access to the data stored under § 113a TKG to be
permitted. Admittedly, in these provisions the legislature has laid down a sophisticated objective of data
use for criminal prosecution which is also, pursuant to Article 74.1 no. 1 and Article 72.1, final. Here,
however, the legislature permits similar standards to apply for the use of the data as have applied until
now for the collection of telecommunications traffic data which the service providers were entitled to store
under § 96 TKG depending on their operational and contractual requirements to a more limited extent and
in such a way that the individual could in part contract out of this. This does not take sufficient account of
the particularly serious encroachment constituted by the systematic precautionary data storage without
cause of § 113a TKG.
Even § 100g.1 sentence 1 no. 1 StPO does not ensure that in general and also in the individual case 279
only serious criminal offences may be the occasion for collecting the relevant data, but – independently of
an exhaustive list – merely generally accepts criminal offences of substantial weight as sufficient. § 100g.1
sentence 1 no. 2, sentence 2 StPO satisfies the constitutional standards even less, in that it accepts every
criminal offence committed by means of telecommunications, regardless of its seriousness, as the
possible trigger for data retrieval, depending on a general assessment in the course of a review of
proportionality. This provision makes the data stored under § 113a TKG usable with regard to virtually all
criminal offences. As a result, in view of the increasing importance of telecommunications in everyday life,
the use of these data loses its exceptional character. Here, the legislature no longer confines itself to the
use of data to prosecute serious criminal offences, but goes far beyond this, and thus also beyond the
objective of data storage specified by EU law, which also in turn is restricted to the prosecution of serious
criminal offences, without including the prevention of danger. Admittedly, a use of these data can be very
useful, especially for the prosecution of criminal offences committed by means of telecommunications, and
therefore restricting it may in some cases make their successful investigation more difficult or even
impossible. However, it is in the nature of the guarantee of Article 10.1 GG and of the proportionality
standards associated with this that not every measure that is useful, and in the individual case may also
be necessary, for criminal prosecution is constitutionally permissible. Conversely, as a consequence of the
standards that are decisive here, telecommunications do not in their entirety become a legal vacuum, even
in the area of less serious criminal offences: the legislature may provide that information under § 113.1
TKG – including information indirectly using the data stored under § 113a TKG – is available for the
investigation of all criminal offences (see above C V 4 c). Similarly, as a result of this, recourse under §
100g StPO to telecommunications traffic data stored otherwise than under § 113a TKG remains possible.
bb) In addition, § 100g StPO fails to comply with the constitutional requirements in that it fundamentally 280
permits retrieval of data even without the knowledge of the person affected (§ 100g.1 sentence 1 StPO).
The constitutional requirements of the transparency of use of data only permit the data stored under §
113a TKG to be collected secretly if this is necessary for reasons carrying more weight which must be
more precisely defined by statute, and if it is judicially ordered.
cc) Nor does the formulation of the duty of notification in every respect comply with the standards 281
developed above. However, the extent of the duties of notification provided for is not as such open to any
constitutional objections. §§ 101.1, 101.4 and 101.5 StPO, in conformity with the case-law of the Federal
Constitutional Court (see BVerfGE 109, 279 (363 et seq.)), provides for complex provisions which balance
the principle of subsequent notification of the person affected, in a manner which is constitutionally
workable, with predominant concerns which exceptionally arise in the individual case. Another aspect
which is unobjectionable in this context is the fact that under § 101.4 sentence 4 StPO, persons affected to
whom the retrieval of data did not apply are not to be notified in every case, but only in accordance with a
weighing of interests. In this weighing of interests, the interests of persons indirectly affected can and must
be taken sufficiently into account.
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