Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
too little value on the margin of discretion which is due to the legislature when evaluating the conflicting
legal interests that merit protection and the drafting of the provision. On this point, I make reference to the
statements made by Justice Schluckebier in his dissenting opinion, to which I agree.
Apart from this, the review of proportionality performed by the majority of the Senate suffers from its 343
always assuming the greatest possible encroachment of a comprehensive form of data retrieval which
ultimately aims to create a social profile of the citizen affected or to track his or her movements. This can
indeed constitute an encroachment whose seriousness is similar to that of a weighty access to the
contents of a citizen’s acts of telecommunication. This perspective, however, leaves out of account that
many instances of data retrieval may concern individual events, short periods of time and the
telecommunications contacts of only one, or few, persons (for example the telecommunications
connections of one person in one day or even in a specific hour). The weight of the encroachment that
such data retrieval constitutes is minor; it is not comparable, at any rate, to access to contents of
communication, regardless of the fact that the retrieval draws on the comprehensively compiled data
collection. By regarding every data retrieval as a particularly serious encroachment upon Article 10.1 GG,
irrespective of its concrete extent in the individual case, and thus generally considering the legislature
constitutionally obliged to establish very high thresholds of encroachment, the majority of the Senate, in
my view, also gets into a conflict of evaluation, even though it denies this, because it is possible for the
authorities to retrieve similar data, without the Senate objecting, if they are not stored by the services
provider according to § 113a TKG but for technical reasons.
On this basis, I can, in spite of the different weighting, still concur with the starting point of the conditions, 344
for which the majority of the Senate has established standards, of a permissible use of the traffic data for
warding off danger and for intelligence-service purposes (C V 2 b and c) but not with the requirements
which the majority of the Senate places on the use of the data for the prosecution of criminal offences (C V
2 a and C VI 3 a aa). In this respect, I regard the differentiated concept for the collection and use of data
for criminal prosecution created by the legislature in § 100g StPO as constitutional. It is the duty of the
judge competent to decide on the permissibility of a retrieval of data in every individual case to take due
account of the legal interests worthy of protection under Article 10.1 GG considering the weight of the
respective encroachment, as is explicitly demanded from the legislature particularly as regards the
criminal offences committed by means of telecommunications in § 100g.1 sentence 2 StPO.
4. In my opinion, even from the point of view of the majority of the Senate, merely the unconstitutionality 345
of the challenged provisions would have had to be established and according to the temporary injunctions
issued in this matter, at least the data collection and storage in the interim until the passing of a new,
constitutional provision would have had to be ordered. By declaring the provisions void without transition
and by establishing an obligation to delete the traffic data obtained on the basis of the temporary
injunctions, the majority of the Senate tolerates disadvantages for the prosecution of criminal offences but
above all the risk of dangers, which cannot be excluded, to important legal interests that must be protected
even though it regards instances of data retrieval which meet the requirements formulated in the
temporary injunctions as fundamentally constitutional and a corresponding legal regulation is to be
expected. I cannot concur with such a solution.
Eichberger
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