Telekom remains obliged to provide law enforcement and security authorities with information about owners of internet connections with “dynamic” IP addresses. The court rejected an urgent application filed in September 2008 with the Administrative Court Cologne (VG Köln) aiming to temporarily suspend this obligation, by means of a decision announced to the parties on December 18, 2008.
The legal dispute stems from orders issued by the Federal Network Agency on august 5 and September 12, 2008, which obligated Telekom, based on the Telecommunications Act (TKG), to disclose to law enforcement and security authorities (public prosecutors' offices, domestic intelligence agencies, the Federal Intelligence Service, and the Military Counterintelligence Service), upon request, which subscriber was assigned a specific dynamic IP address at a particular time. Normally, IP addresses are assigned 'dynamically,' meaning they are newly allocated with each internet connection setup and are not permanently linked (as a 'static' IP address) to a specific connection. If the address and the time of its use are known, the respective provider can uniquely identify the subscriber based on the traffic data available to them.
Telekom had lodged an objection with the Federal Network Agency against these orders, arguing that the disclosure obligation would violate telecommunications secrecy, which may only be infringed upon by a judicial order in individual cases. Concurrently, it filed an application with the Cologne Administrative Court (VG Köln), seeking to ensure that it would not have to provide any information for the duration of the objection proceedings and any subsequent judicial clarification of this contentious issue.
The court did not grant this application. It reasoned that the legal questions raised were unresolved and could not be definitively clarified in expedited judicial proceedings. However, until a final clarification, the public interest in the provision of information outweighs other considerations, as, given the increasing importance of internet communication, effective criminal prosecution and the effective averting of threats to public safety and order would otherwise be significantly hampered.
An appeal against this decision may be lodged with the Higher Administrative Court in Münster (OVG Münster) within two weeks. The full text of the decision will shortly be published in the public database www.nrwe.de (File Ref.: 21 L 1398/08).
Source: Press release of the Cologne Administrative Court dated December 18, 2008
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
