Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
2. a clear identification of the access line through which the use of the Internet is
made,
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3. the beginning and the end of the use of the Internet from the allocated Internet
Protocol address with date and time, stating the relevant time zone.
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(5) To the extent that providers of telephone services store or record the traffic data named in the present
provision for the purposes set out in § 96.2 even if the call is not answered or is unsuccessful as the result
of a network management intervention, the traffic data shall also be stored pursuant to the present
provision.
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(6) A person who provides telecommunications services and in doing so alters the information to be
stored pursuant to the present provision shall store the original and the new information and the time of
the alteration of this information with date and time, stating the relevant time zone.
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(7) A person who operates a mobile telephone network for the public shall also retain, in addition to the
identities of the radio cells stored pursuant to the present provision, data which reveal the geographic
locations of the radio antennae supplying each radio cell and their main beam direction.
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(8) The contents of the communication and data on Internet sites visited may not be
stored under the present provision.
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(9) The storage of the data under subsections 1 to 7 above shall be effected in
such a way that requests for information made by the agencies entitled may be
responded to without delay.
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(10) The provider with obligations under the present provision shall observe the care necessary in the
area of telecommunications with regard to the quality and the protection of the traffic data stored. In this
connection it must ensure by technical and organisational measures that access to the stored data is
exclusively possible to persons specifically authorised by it for this purpose.
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(11) The provider with obligations under the present provision shall delete or ensure
the deletion of the data stored solely pursuant to the present provision within one
month after the end of the period stated in subsection 1.
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b) § 113b TKG sets out the purposes for which the data stored pursuant to § 113a TKG may be used. In
doing so, it distinguishes between transmission to authorities in order to make it possible for them to use
the data to perform their duties, and use by the telecommunications service providers themselves in order
to give information pursuant to § 113 TKG, in particular about the owners of Internet lines.
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aa) § 113b sentence 1 half-sentence 1 TKG sets out the purposes for which the telecommunications
enterprises may transmit the data to public authorities. The prerequisites under which such authorities, for
their part, may use the data are intended to be provided in provisions under Federal or Land (state) law of
the respective area of non-constitutional law. § 113b sentence 1 half-sentence 1 TKG provides that the
provider obliged to store data may transmit the data stored solely pursuant to the duty of retention under §
113a to the competent agencies exclusively for the prosecution of criminal offences (no. 1), to ward off
substantial dangers to public security (no. 2) and to perform intelligence-service duties (no. 3).
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Pursuant to § 113b sentence 1 half-sentence 1 TKG, data may be transmitted to the respective
competent authorities at their request only if this is explicitly provided in the relevant statutory provisions of
non-constitutional law referring to § 113a and the transmission has been ordered in the individual case.
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The basis under non-constitutional law for the authorisation to use the data stored pursuant to § 113a
TKG for the prosecution of criminal offences is § 100g StPO, which is challenged in the proceedings 1
BvR 263/08 and 1 BvR 586/08. As regards the warding off of dangers and the intelligence services’
performance of their duties, § 20m of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz ,
hereinafter: BKAG) as amended by the Act on Prevention by the Federal Criminal Police Office of Threats
from International Terrorism (Gesetz zur Abwehr von Gefahren des internationalen Terrorismus durch das
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