Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Admittedly, such provisions are constitutionally essential. However, the Federal legislature was entitled to
leave these provisions connected with the retrieval of the data to be formulated in each case by the
specialised legislation and thus, where appropriate, also by Land legislation.
c) Another aspect under which the formulation of the use of data stored under § 113a TKG is 287
disproportionate is that there is no protection whatsoever of confidential relationships with regard to the
transmission. At least for a narrowly defined group of telecommunications connections which rely on
particular confidentiality, such a protection is fundamentally required (see above C V 2 e, at the end).
4. Finally, § 113b sentence 1 half-sentence 2 TKG, which provides for an indirect use of the data stored 288
under § 113a TKG for information of the service providers under § 113.1 TKG, also does not satisfy the
requirements of proportionality in every respect.
By the standards developed above, however, there are no constitutional objections to the fact that in § 289
113b sentence 1 half-sentence 2 TKG the legislature does not subject information on the owners of
particular IP addresses already known to the authorities to the particularly stringent requirements which
have to be satisfied for a direct retrieval of the data stored under § 113a TKG. It is therefore
unobjectionable that under § 113b sentence 1 half-sentence 2 TKG in conjunction with § 113.1 TKG such
information is permissible, without a prior judicial order, for the prosecution of criminal offences of every
kind and in general for the tasks of warding off danger and of the intelligence services. However, the
provision is not quite unambiguous with regard to the necessary encroachment thresholds. But when it is
interpreted in conformity with the Basic Law, it can be understood to the effect that § 113.1 TKG refers to
the relevant bases for encroachment in the specialised legislation, and that for access to the data it
requires at least sufficient probable cause under §§ 161, 163 StPO or a concrete danger within the
meaning of the blanket clauses in Länder police law (see Bock, in: Geppert/Piepenbrock/Schütz/Schuster,
Beck’scher Kommentar zum TKG , 3rd ed. 2006, § 113 , marginal no. 7; Graulich, in: Arndt/Fetzer/Scherer,
TKG , 2008, § 113 , marginal no. 8). For information requests by the intelligence services too, the
encroachment threshold of the concrete danger must be derived from the provision, interpreted in
conformity with the Basic Law.
Any abuse of the provision to circumvent § 100g StPO may also be countered by the way of 290
interpretation in conformity with the Basic Law. Understood in the sense of the Basic Law, § 113b
sentence 1 half-sentence 2 in conjunction with § 113.1 TKG does not authorise open retrieval by the
authorities of the names of owners whose telecommunications connections are not known to them.
Instead, corresponding to its objective as expressed in the legislature’s statement of intention, it permits
only information on individual IP addresses already known to the authorities (see Bundestag printed
matter 16/6979, p. 46). In the necessary reform of the law, the legislature may review whether it finds
occasion to clarify this by statute. In this connection, however, § 113b sentence 1 half-sentence 2 in
conjunction with § 113.1 TKG is not found to be unconstitutional.
Nevertheless, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is too broad from the 291
aspect of proportionality in that in general it regards the punishment of regulatory offences too as sufficient
to justify such retrieval. Admittedly, under the standards developed above, the legislature is not as a
matter of principle prevented from employing such information even in the field of regulatory offences in
particularly important cases (see above C V 4 c). However, this requires special well-defined provisions,
which are lacking in the present statute. In addition, § 113b sentence 1 half-sentence 2 in conjunction with
§ 113.1 TKG is also unconstitutional in that there are no provisions for notification of the persons affected.
Under § 113.1 sentence 4 TKG, the persons with a duty to give information must observe secrecy towards
the persons affected, and there is also no guarantee that the authorities seeking information will be
notified. This does not satisfy the constitutional requirements of transparent use of the data stored under §
113a TKG (see above C V 3 a).
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