D: HanseNet ordered to store communication data

Category: Nachrichten
By: O. Gönner - 2B Advice GmbH - the privacy benchmark

On September 8, 2009, the Administrative Court in Cologne ordered HanseNet to implement technology for the storage of communication data, in accordance with 113a TKG (German Telecommunications Act).

The telecommunications provider HanseNet was ordered on July 6 to create the technical requirements for the retention of data regardless of whether there are grounds for suspicion. The appeal by HanseNet is directed against this obligation. Due to the fact that this appeal does not automatically suspend the effect of the decision, HanseNet has petitioned for such a suspensive effect.

 

The petition for a suspensive effect was rejected by decision of 09/08/2009 (reference no. 21 K 1107/09). Although a constitutional review regarding the legitimacy of data retention regulations is forthcoming, regulations limiting the dissemination of stored data that have been imposed by the Constitutional Court are to be interpreted in such a way that an obligation to store communication data does exist.

 

In its decision on the urgent motion in March 2008, the Constitutional Court determined that telecommunications companies have an obligation to retain data on user connections and location for six months regardless of whether there are grounds for suspicion.

However, the court restricted access to this data for the purpose of prosecuting serious criminal offenses.

 

Considering the case for an effective prosecution, the Cologne Administrative Court is not accepting HanseNet's argument concerning the financial risk before a final decision from the Federal Constitutional Court has been reached.

 

The verdict is surprising in that the Administrative Court in Berlin did not impose such data retention obligations on the mobile network operators Mobilcom, Debitel, Klarmobil and Callmobile.

 

In the end, it remains to be seen which fundamental decision the European Court of Justice and the German Federal Constitutional Court will reach regarding the regulations of Art. 113a TKG. Final decisions at the administrative court level will have to wait until this decision has been taken.

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