Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Gaier,
Eichberger,
Schluckebier,
Kirchhof, and
Masing
issued the following
Judgment
on the basis of the oral hearing of 15 December 2009:
7. §§ 113a and 113b of the Telecommunications Act as amended by the Act for the Amendment of
Telecommunications Surveillance and Other Measures of Undercover Investigation and for the
Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette part I 2007,
p. 3198) infringe Article 10 subsection 1 of the Basic Law and are hence void.
8. § 100g subsection 1 sentence 1 of the Code of Criminal Procedure (Strafprozessordnung –
StPO) as amended by Article 1 number 11 of the Act for the Amendment of Telecommunications
Surveillance and Other Measures of Undercover Investigation and for the Implementation of
Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette part I page 3198) infringes
Article 10 subsection 1 of the Basic Law to the extent that it permits the collection of traffic data
stored pursuant to § 113a of the Telecommunications Act and is void to that extent.
9. The telecommunications traffic data collected on the basis of the temporary injunction issued
on 11 March 2008 in the proceedings 1 BvR 256/08 (Federal Law Gazette part I page 659),
repeated and extended by an order of 28 October 2008 (Federal Law Gazette part I page 2239),
last repeated by an order of 15 October 2009 (Federal Law Gazette part I page 3704) by
providers of publicly available telecommunications services under requests for information
made by competent authorities, but provisionally not transmitted to the requesting authorities,
which are stored, must be deleted without delay. They may not be transmitted to the requesting
agencies.
10. The Federal Republic of Germany is ordered to reimburse the complainants their necessary
costs in the constitutional complaint proceedings.
Reasons:
A.
The subject-matter of the constitutional complaints are provisions of the Telecommunications Act
(hereinafter: TKG) and of the Code of Criminal Procedure (hereinafter: StPO) that provide a precautionary
storage for six months of telecommunications traffic data by the providers of publicly available
telecommunications services and the use of such data.
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I.
The challenged provisions were inserted or amended by the Act for the Amendment of
Telecommunications Surveillance and Other Measures of Undercover Investigation and for the
Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198;
hereinafter: Act for the Amendment of Telecommunications Surveillance (Gesetz zur Neuregelung der
Telekommunikationsüberwachung )); pursuant to its Article 16.1, they have entered into force on 1
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
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