The Act on the Reorganisation of Telecommunications Surveillance of 21 December 2007 serves, among other things, to transpose the European Union Directive on Data Retention into German law. To this end, its Article 2 contains amendments to the Telecommunications Act (TKG). The subject of the constitutional complaint filed by eight citizens are the newly created §§ 113a, 113b TKG. § Section 113a TKG regulates the obligation to store data. Providers of telecommunication services are obliged to store certain traffic and location data that accrue during the use of telephone, mobile phone, email and internet for a period of six months. § Section 113b TKG regulates the use of the stored data. According to this provision, the stored data may be retrieved for the purpose of prosecuting criminal offences, averting serious threats to public safety and fulfilling intelligence service tasks. The norm does not contain an independent right to retrieve data; rather, it requires separate legal provisions on data retrieval with reference to § 113a TKG. So far, only the Code of Criminal Procedure (§ 100g StPO) refers to § 113a TKG and allows a request for information for the purpose of criminal prosecution on such telecommunications traffic data that are stored exclusively on the basis of the stockpiling obligation regulated in § 113a TKG.
The complainants' application to suspend Sections 113a, 113b TKG by way of interim injunction until the decision on the constitutional complaint was partially successful.
The First Senate of the Federal Constitutional Court only allowed the application of § 113b TKG, insofar as it regulates the use of stored data for the purpose of criminal prosecution, in a modified form until the decision in the main case.
Based on a request by a law enforcement agency, the provider of telecommunications services must collect and store the requested data. However, they are only to be transmitted to the prosecuting authority if the subject of the investigation is a serious criminal offence within the meaning of section 100a (2) of the Code of Criminal Procedure, which is also serious in the individual case, the suspicion is justified by certain facts and the investigation of the facts would otherwise be considerably more difficult or futile (section 100a (1) of the Code of Criminal Procedure). In the remaining cases, the transmission of data is to be refrained from for the time being. At the same time, the Federal Government was ordered to report to the Federal Constitutional Court by 1 September 2008 on the practical effects of the data storage and the present interim injunction. In all other respects, the First Senate rejected the application for a temporary injunction; in particular, it rejected the suspension of the enforcement of § 113a TKG, which alone regulates the obligation to store data.
The decision is essentially based on the following considerations:
The Federal Constitutional Court may only make use of its power to suspend the entry into force or the execution of a statute with the utmost restraint, since the issuing of such an interim injunction is always a considerable encroachment on the legislature's freedom to formulate its law. The standard of review is even more stringent if an interim injunction is sought which suspends the enforcement of a legal norm insofar as it transposes mandatory requirements of Community law into German law. Such an interim injunction threatens to go beyond the decision-making competence of the Federal Constitutional Court on the merits and may also interfere with the Community interest in an effective enforcement of Community law.
Whether and under which conditions the Federal Constitutional Court may suspend the enforcement of a law insofar as it implements mandatory provisions of Community law does not require a final decision here. However, such a temporary injunction requires at least that the implementation of the law threatens the persons affected with a particularly serious and irreparable damage, the weight of which makes the risk of going beyond the decision-making competence of the Federal Constitutional Court in the main action and seriously impairing the Community interest in an effective implementation of Community law appear acceptable. According to these standards, the application for a temporary injunction is to be granted only in part.
I. The enforcement of Section 113a of the Telecommunications Act (obligation to store data) cannot be suspended.
Data retention alone does not constitute a particularly serious and irreparable disadvantage that could justify suspending enforcement of the provision by way of a temporary injunction. It is true that the comprehensive and unprovoked retention of sensitive data on virtually everyone for state purposes, which cannot be foreseen in detail at the time the data is stored, can have a considerable intimidating effect. However, the disadvantage to the individual's freedom and privacy resulting from the retention of data only condenses and concretizes into a possibly irreparable individual impairment when his or her data is accessed.
II. On the other hand, the use of the retained data for law enforcement purposes, as permitted under Section 113b sentence 1 No. 1 of the Telecommunications Act, must be partially suspended until a decision is reached on the constitutional complaint.
The necessary weighing of consequences shows that the public interest in enforcing the standard must take a back seat to some extent to the disadvantages threatened by enforcing the standard.
(1) If no interim injunction is granted, but the constitutional complaint later proves to be well-founded, individuals and the general public would in the meantime be threatened with disadvantages of quite considerable weight. The retrieval of traffic data itself constitutes a serious and irreversible encroachment on the fundamental right under Article 10.1 of the Basic Law (protection of the secrecy of telecommunications). Such a data retrieval makes it possible to gain far-reaching insights into the communication behaviour and social contacts of the person concerned. In addition, in many cases the knowledge gained through the traffic data retrieval will form the basis for further investigative measures. Finally, the retrieved traffic data as well as the findings obtained through further investigative measures linked to the traffic data retrieval can become the basis for criminal proceedings or, if applicable, a criminal conviction of the data subject, which would not have been possible without the data retention and data retrieval.
(2) If an interim injunction related to the retrieval of the stored data were issued, but the challenged norms later proved to be constitutional, disadvantages for the public interest in effective criminal prosecution could result. However, these disadvantages weigh less heavily in part and are to be accepted if the request for retrieval is not excluded, but only the transmission and use of the data collected in response to the request by the party obliged to store the data is suspended. If the standards challenged by the constitutional complaint were to prove to be constitutional, these data could then be used in full for the purpose of criminal prosecution. A thwarting of criminal prosecution through the deletion of the stored data in the meantime is then not to be feared.
However, the transmission and use of data collected by a service provider in response to a search request are not to be restricted in cases where the subject of the preliminary investigation is a serious criminal offence within the meaning of section 100a (2) of the Code of Criminal Procedure, which is also serious in the individual case, the suspicion is justified by specific facts and the investigation of the facts would otherwise be substantially impeded or futile (section 100a (1) of the Code of Criminal Procedure). In constitutional summary proceedings, the legislature's assessment is to be taken as a basis, according to which the offences mentioned in section 100a (2) of the Code of Criminal Procedure are so serious that they can also justify weighty encroachments on the fundamental right under Article 10 (1) of the Basic Law. In these cases, the public interest in criminal prosecution therefore generally has such weight that a delay by means of a temporary injunction cannot be accepted. In this context, it is not necessary to clarify in the proceedings on the issuance of a temporary injunction whether the German legislature was obliged by Directive 2006/24/EC to include all of the offences listed in section 100a (2) of the Code of Criminal Procedure in the power of interception under section 100g of the Code of Criminal Procedure.
If, on the other hand, these conditions are not met, the transmission and use of the retained traffic data must be temporarily suspended. Particularly in cases where the authorisation to retrieve data in the Code of Criminal Procedure (Section 100g of the Code of Criminal Procedure) allows traffic data to be retrieved on suspicion of other "criminal offences of considerable importance in individual cases" or criminal offences by means of telecommunications, the risk that a delay in the use of the data will thwart the investigative proceedings as a whole must be accepted. The non-inclusion in the catalogue of Section 100a (2) of the Code of Criminal Procedure indicates that the legislature attached less importance to the remaining offences with regard to encroachments on the fundamental right under Article 10 (1) of the Basic Law. Accordingly, the disadvantages of suspending the use of data, which must be weighed against the impairment of the fundamental rights of the persons concerned in the context of weighing the consequences, are to be given less weight.
III There is no reason for a temporary injunction on the use of data for preventive purposes (Section 113b sentence 1 nos. 2 and 3 TKG), as there are currently no authorizations under specialist law to retrieve data that expressly refer to Section 113a TKG.
Source: Press Office of the Federal Constitutional Court,
Press release No. 37/2008 of March 19, 2008,
Decision of the Federal Constitutional Court of March 11, 2008, Ref.: 1 BvR 256/08
If you have any questions on this topic, please do not hesitate to contact Goldberg Rechtsanwälte.
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
