Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
sabotage; § 38.1 of the Securities Trading Act (Wertpapierhandelsgesetz – WpHG) in conjunction with
§ 14.1 no. 1 WpHG, so-called insider trading, § 38.2 in conjunction with § 39.1 no. 1, § 20a.1 sentence 1
nos. 1 to 3 WpHG, illegal manipulations of the market; § 86 StGB, dissemination of propaganda material
of unconstitutional organisations).
Admittedly, it seems conceivable that the legislature will incorporate some of these offences into the list 333
of serious criminal offences demanded by the Senate. In doing so, however, it will come up against the
limits of an appropriate threat of punishment committed to the principle of guilt which can justify this
measure. It will thus hardly be permitted to incorporate, for example, offences which are not committed for
commercial purposes or do not cause major damage in an individual case into a list such as the one which
the Senate is contemplating. It will hardly be possible to mitigate the deficiencies in investigation by
making use of non-retained data which only exist for technical reasons. Experience has shown that great
differences exist between the service providers in this respect. In some cases, data are not retained at all,
in other cases they are already deleted after a few hours or days. Even the investigation measures which
will lead to the application for the issuing of a judicial order, the preparation of such an application and the
decision on it will often take more time than the service provider keeps the data available for technical
reasons.
5. Something similar applies with regard to the threshold of interference which the Senate establishes for 334
purposes of warding off danger. The legal interests which the Senate considers sufficiently weighty for the
traffic data to be regarded as retrievable and usable would have had to include the warding off of a
danger, which is not at the same time a danger to public safety, to property of significant value,
maintenance of which is demanded by the public interest. It does not seem plausible to me to exclude
important material assets covered by this definition because they are also protected by fundamental rights
(see Article 14.1 GG). To include this legal interest into protection as well is not inappropriate at least if the
collection of traffic data furthermore contains a subsidiarity clause, as is the case for example in § 20m
BKAG (“… would be impossible or considerably more difficult.”)
6. To the extent that the majority of the Senate postulates an extension of the duties of notification for the 335
case of access to traffic data and demands in principle, with regard to the law of criminal procedure, not
only what is known as open access but notification “before the retrieval or transmission” if this does not
run counter to the protection of the purpose of the investigation, this requirement also goes beyond the
legislative concept, thereby interfering with the legislature’s discretion. The concept of the legislature was
to pass provisions on all “measures of undercover investigation”, among which it expressly included the
collection of traffic data (Bill, Bundestag printed paper BTDrucks 16/5846, p. 2). Also § 100g StPO
provides that traffic data may (at first) be collected “without the knowledge of the person concerned”. And
this is with good reason. For as a general rule, investigations are characterised by a considerable
dynamics and have to be conducted rapidly. Effort which purposes of procedural safeguarding and of the
protection of the law do not absolutely demand to be made within a narrow time frame should at first be
limited. Accordingly, the legislature has passed a differentiated provision on notification also for the
collection of traffic data (see § 101.1, 101.4 sentence 1 no. 5, 104.5 StPO), which does not prescribe prior
notification. In addition, the legislature, by permitting to collect traffic data at first without the knowledge of
the person concerned, discernably introduced a categorisation which is due to the fact that in most cases,
the purpose of the investigation, the unknown whereabouts of the person affected or the need to rapidly
investigate the facts are contrary to prior notification. This is evidently not inappropriate, reasonable with
regard to the person affected, and the legislature is therefore not constitutionally banned from proceeding
in this manner.
III.
It is true that the declaration of nullity of the challenged provisions which was pronounced by the Senate 336
is the legal consequence of the declaration of incompatibility which has been carried by the majority.
However, on the basis of the constitutional assessment of the majority of the Senate, having recourse to
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