Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
January 2008. They serve to implement Directive 2006/24/EC of the European Parliament and of the
Council of 15 March 2006 on the retention of data generated or processed in connection with the provision
of publicly available electronic communications services or of public communications networks and
amending Directive 2002/58/EC (OJ L 105 of 13 April 2006, p. 54; hereinafter: Directive 2006/24/EC).
1. All constitutional complaints directly challenge §§ 113a and 113b TKG, which have been inserted into
the Telecommunications Act by Article 2 no. 6 of the Act for the Amendment of Telecommunications
Surveillance. Apart from this, the constitutional complaints in the proceedings 1 BvR 263/08 and 1 BvR
586/08 directly challenge § 100g StPO as amended by Article 1 no. 11 of the Act for the Amendment of
Telecommunications Surveillance to the extent that it permits the collection of data stored pursuant to
§ 113a TKG.
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a) § 113a TKG aims, with regard to all publicly available telecommunications services, at storing, for six
months, traffic data which provide information on the lines involved in a telecommunications connection
and about the time and the locations at which an act of telecommunication has taken place and to keep
them available for the state’s performance of its duties. In doing so, the Act takes up demands which had
been made by the Bundesrat for an extended period of time (see Bundestag printed paper
(Bundestagsdrucksache – BTDrucks) 14/9801, p. 8; Bundesrat printed paper (Bundesratsdrucksache –
BRDrucks 755/03 (resolution), p. 33 et seq.; BRDrucks 406/1/04; BRDrucks 406/04 (resolution);
BRDrucks 723/05 (resolution), p. 1), with which the German Bundestag concurred in 2006, making
reference to the respective initiatives on the European level. The German Bundestag requested the
Federal Government to approve the draft Directive 2006/24/EC and to immediately submit a draft of an
implementing Act (see Bundestag printed papers 16/545, p. 4; 16/690, p. 2; Minutes of plenary
proceedings of the Bundestag (BTPlenarprotokoll) 16/19, p. 1430). The Federal Government complied
with the request by submitting the draft Act for the Amendment of Telecommunications Surveillance (see
Bundestag printed paper 16/5846).
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§ 113a.1 sentence 1 TKG obliges the of publicly available telecommunications services to store, for a
period of six months, the telecommunications service data listed in § 113a.2 to 113a.5 regarding fixed
network, internet and mobile communications, the transmission of text, multi-media and similar messages,
email connections and Internet access. According to § 113a.1 sentence 2 TKG, a person who provides
such services without himself creating traffic data shall ensure that the data are stored, and shall inform
the Federal Network Agency (Bundesnetzagentur ) as to who is storing these data. Apart from this, a
person who provides telecommunications services and in doing so alters the information to be stored
pursuant to § 113a TKG is obliged to store the original and the new information. According to § 113a.11
TKG, the data are to be deleted within one month after the end of the storage period. Pursuant to § 113a.8
TKG, the contents of the communication and data on Internet sites visited may not be stored. As regards
data security, § 113a.10 TKG makes reference to the care necessary in the area of telecommunications
and demands that access to the stored data be exclusively possible to persons specifically authorised for
this purpose.
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Apart from data storage according to § 113a TKG, the providers of telecommunications services retain,
pursuant to § 96 TKG, the possibility of storing and using telecommunications data to the extent necessary
for the purposes specified therein. After the end of a telecommunications connection, these data may
essentially be used pursuant to § 96.2 sentence 1 to the extent that this is necessary for charging and
invoicing the parties (§ 97.1 sentence 1 TKG), for itemised billing (§ 99.1 sentence 1 TKG), to the extent
necessary for recognising, locating or eliminating faults or deficiencies of telecommunications equipment
(§ 100.1 TKG), and to give information about the owners of lines from which threatening or malicious calls
have been made (§ 101.1 sentence 1 TKG).
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§ 113a TKG reads as follows:
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§ 113a
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Duties to store data
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