In its decision of 28 October 2008, the First Senate of the Federal Constitutional Court partially granted an application for an extended interim injunction regarding the regulations on the retention of telecommunications traffic data. § Section 113a of the Telecommunications Act (TKG) provides that all traffic data generated by the use of telecommunications services must be stored by the service providers for a period of six months. This applies to telephone services as well as internet access services and e-mail services. The service providers may transmit the data, which is retained without any reason, to the competent authorities for the purpose of criminal prosecution (section 113b sentence 1 no. 1 TKG), to avert significant threats to public security (section 113b sentence 1 no. 2 TKG) and to fulfil the tasks of the Office for the Protection of the Constitution, the Federal Intelligence Service and the Military Counter-Intelligence Service (section 113b sentence 1 no. 3 TKG). The legal prerequisite for the transmission of data is that the authorities concerned are authorised to access the data by a legal basis that refers to § 113a TKG. Such a retrieval standard initially existed only with regard to criminal prosecution. By order of 11 March 2008 (extended by order of 1 September 2008), the First Senate of the Federal Constitutional Court had, at the request of the complainants, issued a temporary injunction according to which the transmission of the data retained for law enforcement purposes under § 113b sentence 1 no. 1 TKG may only take place in accordance with the conditions provided for in the temporary injunction until a decision is made on the constitutional complaint (press release no. 37/2008 of 19 March 2008). At that time, there was no reason to extend the interim injunction to §113b sentence 1 nos. 2 and 3 TKG, because there was no legal basis for retrieving the retained data stored under §113a TKG, neither in the area of danger prevention nor in the area of constitutional protection and intelligence services.
In the meantime, the legislature of the Free State of Bavaria has amended both the Police Tasks Act (BayPAG) and the Protection of the Constitution Act (BayVSG) with the Act Amending the Police Tasks Act of 8 July 2008 and the Act Amending the Bavarian Protection of the Constitution Act, the Implementing Act to the Article 10 Act and the Parliamentary Control Body Act of 8 July 2008. Art. 34b para. 2 and para. 3 BayPAG and Art. 6c para. 2 BayVSG now refer to § 113a TKG and allow official access to the data to be stored according to this provision also for the purpose of averting danger and fulfilling the tasks of the Office for the Protection of the Constitution. The complainants base their renewed application for a temporary injunction in particular on this.
The Thuringian Police Duties Act (ThürPAG) now also contains a corresponding provision for the area of averting threats to public safety in section 34a (1) sentence 1 no. 3 in conjunction with section 34a (3) ThürPAG. The complainants' renewed and extended emergency application was partially successful. The First Senate of the Federal Constitutional Court first extended the temporary injunction of 11 March 2008 (already extended by order of 1 September 2008) for a period of six months. At the same time, it extended the interim injunction to the effect that the data for the prevention of danger (§ 113b sentence 1 no. 2 TKG) retained pursuant to § 113a TKG may only be transmitted by the telecommunications service providers to the requesting authority under restrictive conditions. Transmission is only permissible if - in addition to the requirements of the retrieval standard (e.g. Art. 34b para. 1 and para. 2 BayPAG) - the retrieval of the data is necessary to avert an urgent danger to life, limb or freedom of a person, to the existence or security of the Federation or a Land or to avert a common danger. The transmitted data may only be used for the purposes for which they were retrieved. They may only be forwarded or used for criminal prosecution if the subject of the criminal prosecution measure is a catalogue offence within the meaning of section 100a (2) of the Code of Criminal Procedure and the requirements of section 100a (1) of the Code of Criminal Procedure are met.
For tasks of the protection of the constitution (§ 113b sentence 1 no. 3 TKG), it applies that in the case of a retrieval, the data may only be transmitted to the requesting authority if, in addition to the prerequisites of the retrieval standard (e.g. Art. 6c para. 2 BayVSG), the prerequisites of § 1 para. 1, § 3 of the Act on the Restriction of the Secrecy of Letters, Post and Telecommunications (Art. 10 Act) are met. Furthermore, the transmitted data may only be used for the purposes for which they were retrieved. They may only be transmitted to other authorities in accordance with section 4 (4) G 10. The complainants' application going beyond this was rejected.
The decision is essentially based on the following considerations:
I. With regard to the use of the data to be stored pursuant to § 113a TKG, insofar as such use was already the subject of the Senate's decision of 11 March 2008, the previous assessment remains valid. The interim injunction is therefore to be extended to the same extent. The previous interim injunction is also not to be extended with regard to the fact that the data stored pursuant to § 113a TKG are also used pursuant to § 113b sentence 1 half sentence 2 TKG according to the current legal interpretation and practice to provide information pursuant to § 113 TKG (so-called inventory data information). Admittedly, this use also raises legal questions that require further examination in the main proceedings. However, the complainants' arguments do not give any reason to come to a different conclusion in the context of weighing the consequences and to temporarily suspend the use of these data by way of an interim injunction.
The application for an extension of the transitional provision of § 150 para. 12b TKG, which expires on 1 January 2009, according to which providers of internet access services, e-mail services, etc. are temporarily exempted from the obligation to store data under § 113a TKG, was also unsuccessful.
II. However, the application is partially successful insofar as it is directed against the use of the data for the prevention of danger pursuant to § 113b sentence 1 no. 2 TKG - which has now become relevant due to Art. 34b para. 3 BayPAG and § 34a para. 1 sentence 1 no. 3 ThürPAG. Through the creation of the new retrieval standards, not only the law enforcement authorities, but also the police authorities working in the field of danger prevention can gain far-reaching knowledge about the communication behaviour and social contacts of the persons concerned. In addition to the actual target person of the request for information, persons may also be recorded who have no connection to the reasons justifying the data retrieval and who have not otherwise given cause for the associated encroachment on fundamental rights. It is important to note that the use of the data made possible by the provision is very wide-ranging and is only limited by the unspecified requirement of "relevance". Due to the larger circle of authorities authorised to access data and the expansion of the permissible purpose of access, the probability increases for the data subject to be subjected to further police measures such as telecommunications surveillance, seizures and searches of flats, which would not have been carried out without this information.
As a result, trust in the general impartiality of the electronic exchange of information and ideas as well as trust in the protection of telecommunications guaranteed by Article 10 (1) of the Basic Law is restricted to a considerable extent. The disadvantages associated with the issuance of a temporary injunction, that significant dangers are realised by the non-collection of data, which could possibly have been averted with the help of collected data, must take a back seat in the context of the weighing of consequences to be undertaken insofar as the data do not serve to avert an urgent danger to the life, limb or freedom of a person, to the existence or security of the Federation or of a Land or to avert a common danger. In this respect, the weight of the legal interests to be protected must be taken into account, not the catalogue of offences. In addition, compliance with these requirements must be procedurally ensured by the fact that - as provided for in the retrieval nomenclature - data retrieval is ordered by a judge, except in cases of imminent danger. A change in the purpose of use with the aim of using the data for criminal prosecution is only permissible if - in addition to the requirements of corresponding legal provisions - the conditions of Section 100a (1) and (2) of the Code of Criminal Procedure are met.
III The application is also partially successful insofar as it is directed against the transfer of data for tasks of the Office for the Protection of the Constitution, the Federal Intelligence Service and the Military Counter-Intelligence Service pursuant to § 113b sentence 1 no. 3 TKG. The scope of application of this provision opens up a fundamentally wider field, which is difficult to grasp and delimit, in comparison to the access possibilities in the context of criminal prosecution and danger prevention. If, in the main proceedings, the transmission of traffic data stored without cause were to prove unconstitutional, the stored traffic data would be unconstitutionally exposed to far-reaching access by the authorities already in advance of any concrete danger or criminal offence. The risk of becoming the focus of observation by the Office for the Protection of the Constitution without having given cause would be considerable. If, on the other hand, a temporary injunction is issued, but it later turns out that the access to the stockpiled traffic data, which is thereby suspended, is not constitutionally objectionable, the disadvantage lies in the loss of information that allows the constitutional protection authorities to obtain a more precise picture of the endeavours to be observed pursuant to Article 3 (1) BayVSG and thus also makes it possible in the longer term to combat such endeavours more effectively. The protected interests in question also include those of fundamental importance. However, these disadvantages are diminished by the fact that the constitutional protection authorities are generally only active in the run-up to dangers, for the collection and evaluation of information, and that a suspension of the transmission of traffic data will therefore at least not lead to direct security risks to a considerable extent. This is because the prevention of danger itself is the responsibility of the competent security authorities. Overall, the disadvantage of a temporary injunction in the area of application of Section 113b sentence 1 no. 3 TKG is significantly less than in relation to access to stored traffic data for criminal prosecution and danger prevention, which is directly concerned with the prevention of threatened violations of the law or the punishment of violations of the law that have actually occurred. The weighing of consequences therefore also leads to the result that the transfer of data must be partially restricted. However, an interim injunction is not required in a comprehensive manner that would exclude the transmission of data stored pursuant to Section 113a TKG to the constitution protection authorities altogether. If, in the case of a query pursuant to § 113b sentence 1 no. 3 TKG, the requirements of § 1 (1), § 3 of the Article 10 Act are met, the weighing of consequences rather leads to the result that a legally ordered transmission of these data pursuant to § 113b sentence 1 no. 3 TKG is to be provisionally accepted until a decision is made in the main action. With § 1.1, § 3 G 10, the legislature has adopted a regulation according to which interventions in Article 10.1 of the Basic Law on the part of the constitutional protection authorities were already permissible in the past. Within the framework of the weighing of disadvantages required in the present case, it is appropriate to accept the transmission of traffic data stored pursuant to § 113a of the Telecommunications Act for the fulfilment of the tasks of the Office for the Protection of the Constitution in cases in which the prerequisites set out in § 1.1 and § 3 of the Basic Law are met, and to subordinate the associated disadvantages for the persons concerned to the gain in information about such particularly serious threats, until the Senate has reached a decision in the main case. In contrast, any further transmission and use of the data retained pursuant to section 113a TKG to the constitution protection authorities is provisionally inadmissible.
Order of the Federal Constitutional Court of 28 October 2008 - 1 BvR 256/08 -
Source: Federal Constitutional Court - Press Office - Press release no. 92/2008 of 06 November 2008, Order of 28 October 2008 - 1 BvR 256/08 -
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)