D: Data Retention Unconstitutional - Part 1

The German Constitutional Court, in Judgement 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08 of March 2, 2010, declared Regulations SS 113a, 113b TKG (German Telecommunications Act) and 100g StPO (German Code of Criminal Procedure) to be unconstitutional.

On the basis of EU Regulation 2006/24/EG, the above named regulations on so-called "Data Retention" were enacted by the German Legislature. The regulations allowed for the use of stored traffic data independently of a comprehensive list of offenses for the prosecution of crimes carrying substantial penalties. They further make allowance, following a proportionality test of the individual case, for the data also to be used for the prosecution of offenses committed by means of telecommunication.

The Federal Constitutional Court (Bundesverfassungsgericht) takes the view that the Secrecy of Telecommunications of Article 10GG of the Protection of Fundamental Rights (Grundrechtsschutz) is breached by Regulations contained in SS. 113a, 113b TKG and 100g StPo. The Court views a six month storage period without grounds as irreconcilable with this fundamental right, since no assessment under any such general duty of storage of all traffic data which takes account of the individual case, has even been given.

The judges regard this infringement of Fundamental Rights as a particularly serious infringement with a range of implications which previously did not exist. In another deliberation they regard it as not necessarily inadmissible (see part 2 of the judgement).

The Court acknowledges that combinations of addresses, dates, times and places of telephone conversations, if observed over a lengthy period, enabled detailed accounts of social or political affiliations and also of personal preferences, proclivities and weaknesses to be compiled. The judges see the possibility of the creation of significant profiles on personalities and movements, which must be classified as intrusions on privacy.

In addition, the judgement opens the way for the legislature to implement the above named regulation.

For businesses, the judgement means that for the time being SS. 113a and TKG constitute neither obligation nor permission for the storage of communications data. Data which at the present time are retained on the basis of data retention must be deleted.