Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
In contrast, the provisions on judicial review for cases in which a notification may be omitted are 282
inadequate. § 101.6 StPO provides for judicial review only when notification is deferred under § 101.5
StPO, but not when there is no notification, under § 101.4 StPO. This does not take sufficient account of
the high value of the notification for transparent use of the data stored under § 113a TKG. Where data
retrieval relates directly to traffic data of a specific person, that person absolutely must be subsequently
notified unless there is a judicial review of the relevant grounds for an exception. Such a judicial review is
missing in the cases in which there is to be no notification under § 101.4 sentence 3 StPO by reason of
predominant concerns of a person affected.
dd) In contrast, the judicial review of data retrieval and data use is itself guaranteed in a manner that 283
complies with constitutional requirements. Under § 100g.2 sentence 1, § 100b.1 sentence 1 StPO, the
collection of the data stored under § 113a TKG requires a judicial order. Nor does the judicial order
authorise the authorities to have direct access to the data; instead, it obliges the service providers to filter
them out and transmit them, in a separate intermediate process in compliance with the order. In addition,
under § 101.1, 101.7 sentences 2 to 4 StPO there is the possibility subsequently to arrange a judicial
review of the lawfulness of the measure. It is not apparent that these provisions do not, as a whole,
guarantee effective legal protection.
However, the statutory provisions on the formal requirements of the judicial order are not formulated in 284
sufficiently well-defined provisions. § 100g.2 in conjunction with § 100b.2 StPO merely lays down the
minimum requirements of the operative part of the order; apart from this, the general obligation to give
reasons for a decision applies to decisions under § 34 StPO. In revising the legislation, the legislature
should consider whether it would be appropriate to emphasise the strict requirements of a substantiated
justification of judicial orders (see BVerfGE 103, 142 (151); 107, 299 (325); 109, 279 (358-359)) by way of
a special and tailor-made provision. At all events, it must be ensured by statute that the extent of the data
to be transmitted is described in the judicial order sufficiently selectively and unambiguously for the service
providers, in a manner that satisfies the principle of proportionality.
b) The challenged provisions also fail to satisfy the constitutional requirements with regard to the 285
retrieval and use of the data stored under § 113a TKG for warding off danger and for the tasks of the
intelligence services. The very structure of § 113b sentence 1 nos. 2 and 3 TKG does not satisfy the
requirements of sufficient limitation of the purposes of use. In this provision, the Federal legislature
contents itself with sketching in a merely general manner the fields of duty for which data retrieval is to be
possible, without stating the purposes of use in concrete terms. Instead, it leaves the purposes of use to
be defined in concrete terms by later legislation, including in particular Länder legislation. In this way the
Federal legislature does not satisfy its responsibility for the constitutionally required limitation of the
purposes of use. If it orders that telecommunications traffic data are to be stored, it is at the same time
obliged to lay down additionally in a binding form the purposes of use and thresholds of encroachment that
are necessary to constitutionally justify the storage, and to bindingly lay down the consequential provisions
that are necessary to guarantee that the use is limited to specific purposes. § 113b half-sentence 1 TKG
contains no such provisions. Instead, because the service providers have a duty of precautionary storage
of all telecommunications traffic data, and at the same time these data are released to be used by the
police and the intelligence services as part of almost all their tasks, a data pool is created open to manifold
and unlimited uses to which – restricted only by broad objectives – recourse may be had, in each case on
the basis of decisions of the Federal and Länder legislatures. The supply of such a data pool with an open
purpose removes the necessary connection between storage and purpose of storage and is incompatible
with the constitution (see above C V 5 a).
In contrast, there is no objection to the fact that § 113b TKG contains no comprehensive provisions on 286
duties of notification or on judicial review for the case where data stored under § 113a TKG are used to the
purposes of warding off danger and of the carrying out of their duties by the intelligence services.
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
Seite 39 von 53