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Extended application for a temporary injunction in the matter of "data retention" succeeds in part
Press Release No. 92/2008 of 06 November 2008
Order of 28 October 2008
1 BvR 256/08
In an Order of 28 October 2008, the First Senate of the Federal Constitutional Court granted in part an application for the issuing of an extended temporary injunction with regard to the provisions on the retention of telecommunications traffic data.
§ 113a of the Telecommunications Act (Telekommunikationsgesetz - TKG) provides that all traffic data that arise when telecommunications services are used are to be stored by the service providers for six months in each case. This applies to telephone services and also to internet access services and email services. Data stored without occasion to be retained may be communicated by the service providers to the competent authorities for the prosecution of criminal offences (§ 113b sentence 1 no. 1 TKG), for the warding off of substantial dangers to public security (§ 113b sentence 1 no. 2 TKG) and for the performance of the tasks of the authorities for the protection of the constitution, the Federal Intelligence Service and the Military Counterintelligence Service (§ 113b sentence 1 no. 3 TKG). The statutory requirement for the data to be communicated is that the relevant authorities are in each case authorised to retrieve data by a legal provision that refers to § 113a TKG. At first, the only such legal provision for retrieval applied to the prosecution of criminal offences.
In an Order of 11 March 2008 (extended by an Order of 1 September 2008), the First Senate of the Federal Constitutional Court, on the application of the complainants, issued a temporary injunction under which, until there is a decision on the constitutional complaint, the communication of the retained data for the purposes of criminal prosecution under § 113b sentence 1 no. 1 TKG may be made only under the conditions contained in the temporary injunction (press release no. 37/2008 of 19 March 2008). At that time, there was no occasion to extend the temporary injunction to § 113b sentence 1 nos. 2 and 3 TKG, because neither in the area of warding off danger nor in that of the authorities for the protection of the constitution and the intelligence services was there a statutory basis for retrieval of the retained data stored under § 113a TKG.
The legislature of the Free State of Bavaria has now amended both the Bavarian Police Duties Act (Gesetz über die Aufgaben und Befugnisse der Bayerischen Staatlichen Polizei - BayPAG) and also the Bavarian Act on the Protection of the Constitution (Bayerisches Verfassungsschutzgesetz - BayVSG) in the Act to Amend the Bavarian Police Duties Act (Gesetz zur Änderung des Polizeiaufgabengesetzes) of 8 July 2008 and the Act to Amend the Bavarian Act on the Protection of the Constitution, the Implementing Statute for the Act on Article 10 of the Basic Law and the Parliamentary Supervisory Committee Act (Gesetz zur Änderung des Bayerischen Verfassungsschutzgesetzes, des Ausführungsgesetzes zum Artikel 10-Gesetz und des Parlamentarischen Kontrollgremium-Gesetzes) of 8 July 2008. Articles 34b.2 and 34b.3 BayPAG and Article 6c.2 BayVSG now make reference to § 113a TKG and permit official access to the data to be stored under this provision, including access for the purpose of warding off danger and the performance of the duties of the authority for the protection of the constitution. It is upon this in particular that the complainants base their renewed application for a temporary injunction. With regard to the area of the warding off of dangers to public security, § 34a.1 sentence 1 no. 3 in conjunction with § 34a.3 of the Thuringian Police Duties Act (Thüringer Polizeiaufgabengesetz - ThürPAG) now contains a similar provision.
The renewed and extended application of the complainants for a temporary injunction was successful in part. First, the First Senate of the Federal Constitutional Court 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 temporary injunction to the effect that the retained data stored under § 113a TKG for the warding off of danger (§ 113b sentence 1 no. 2 TKG may only be communicated by the telecommunications service providers to the requesting authority under restrictive conditions. A communication of data is only permissible if - in addition to the conditions of the retrieval provision (e.g. Article 34b.1 and § 34b.2 BayPAG) - the retrieval of the data is necessary to ward off an urgent danger to the life, limb or freedom of a person, for the continued existence or the security of the Federation or of a Land (state) or to ward off a common danger. The data communicated may be used only for the purposes for which they are retrieved. For the prosecution of criminal offences they may only be forwarded or used if the object of the criminal prosecution is an offence listed under § 100a.2 of the Code of Criminal Procedure (Strafprozessordnung - StPO) and the conditions of § 100a.1 StPO are satisfied. With regard to duties of the authority for the protection of the constitution (§ 113b sentence 1 no. 3 TKG), the law is that in the ase of a retrieval the data may be communicated to the requesting authority only if in addition to the conditions of the retrieval provision (e.g. Article 6c.2 BayVSG) the conditions of § 1.1 and § 3 of the Act on Article 10 of the Basic Law (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses - G 10) are satisfied. In addition, the data communicated may be used only for the purposes for which they were retrieved. They may be communicated to other authorities only in compliance with § 4.4 G 10. The application of the complainants was rejected insofar as it exceeded this.
In essence, the decision is based on the following considerations:
I. With regard to the use of the data to be stored under § 113a TKG, the assessment remains unchanged insofar as such a use was the subject of the decision of the Senate of 11 March 2008. The temporary injunction is therefore to be extended without changes to its scope. Nor is the present temporary injunction to be extended in respect of the fact that the data stored under § 113a TKG are also, under § 113b sentence 1 half-sentence 2 TKG, under current interpretation of the law and legal practice, used to grant information under § 113 TKG (known as customer data information). This use also gives rise to questions of law which must be examined more closely in the main proceedings. But the complainants' submission gives no occasion to come to a different conclusion now in the weighing of consequences and to temporarily suspend a use of this data by way of temporary injunction. The application for an extension of the transitional arrangement of § 150.12b TKG, which expires on 1 January 2009, was also unsuccessful; under this provision, providers inter alia of internet access services and email services are provisionally still exempted from the duty of storage of § 113a TKG.
II. However, the application is successful in part, insofar as it challenges the use of data - which has now become significant as a result of Article 34b.3 BayPAG and § 34a.1 sentence 1 no. 3 ThürPAG - for the warding off of danger under § 113b sentence 1 no. 2 TKG. As a result of the creation of the new retrieval provisions, it is no longer only the criminal prosecution authorities, but also the police authorities which act in the area of warding off danger, that may obtain extensive information on the communication behaviour and the social contacts of the persons affected. In this connection, in addition to the person who is the actual target of the request for information, it is possible that persons will also be included who have no relation to the grounds of justification of the data retrieval and have given no other occasion for the encroachment on fundamental rights associated with this. A significant factor here is the fact that the use of data permitted by the provision is extremely wide-reaching and is limited only by the requirement that the danger is "substantial", which is not defined in detail. The increase in the number of authorities entitled to retrieve data and the extension of the permissible purpose of retrieval mean that there is a greater possibility that the person affected is exposed, on the basis of the information obtained by the retrieval of retained data, to further police measures such as telecommunications surveillance, seizure and searches of the home, which would not have been carried out without this information. As a result of this, the confidence in the general uninhibitedness of the electronic exchange of information and ideas and the confidence in the protection of telecommunications guaranteed by Article 10.1 of the Basic Law are significantly restricted. There are disadvantages associated with the issuing of a temporary injunction in that the failure to collect data may result in substantial dangers which might possibly have been warded off with the help of data collected; these disadvantages must have lower priority in the necessary weighing of consequences to the extent that the data do not serve to ward off an imminent danger for the life, limb or freedom of a person, for the continued existence or the security of the Federation or of a Land or to ward off a common danger. In this respect, it is necessary to rely not on lists of offences, but on the weight of the objects of legal protection. In addition, compliance with these conditions must be procedurally guaranteed by the data retrieval being ordered by a judge - as is provided in the retrieval provisions - except where there is imminent danger. An alteration of the purpose with the goal of using the data for criminal prosecution is only permissible if - in addition to the requirements of relevant statutory provisions - the conditions of § 100a.1 and § 100a.2 StPO are satisfied.
III. The application is also successful in part insofar as it challenges data communication for duties of the authorities for the protection of the constitution, the Federal Intelligence Service and the Military Counterintelligence Service under § 113b sentence 1 no. 3 TKG.
The area of application of this provision, in contrast to the access possibilities in connection with the prosecution of criminal offences and the warding off of danger, opens up a fundamentally different field which is complex and difficult to define. If it transpired in the main proceedings that the communication of traffic data stored without occasion was unconstitutional, the stored traffic data would be unconstitutionally exposed to the comprehensive access of the authorities even before any concrete danger or criminal offence whatsoever existed. In this connection, the risk of finding oneself, without having provided an occasion for this, the focus of observation by the authorities for the protection of the constitution would be considerable. If, on the other hand, a temporary injunction is issued but it transpires later that the access to the stored traffic date suspended by this is constitutionally unobjectionable, the disadvantage consists in the loss of information which allows the authorities for the protection of the constitution to form a more precise picture of the activities to be observed under Article 3.1 BayVSG and in this way also makes it possible in the longer term to combat such activities more effectively. The protected interests in question also include interests of elementary importance. However, these disadvantages are mitigated by the fact that the authorities for the protection of the constitution in principle only act in anticipation of dangers, to collect and evaluate information, and thus a suspension of the communication of the traffic data will at least not result to a substantial degree in direct security risks. For the warding off of danger itself is incumbent on the competent security services. Altogether, the disadvantage of a temporary injunction in the area of application of § 113b sentence 1 no. 3 TKG weighs appreciably less than that of access to stored traffic data for the purpose of criminal prosecution and the warding off of danger, which relate directly to the prevention of threatening violations of legal interests or the punishment of violations of legal interests that have actually occurred. Here, therefore, the weighing of consequences also leads to the result that the communication of data is to be restricted in part.
However, a temporary injunction is not required in a comprehensive sense that would completely exclude the communication of the data stored under § 113a TKG to the authorities for the protection of the constitution. Instead, where, when a request under § 113b sentence 1 no. 3 TKG is made, the requirements of § 1.1 and § 3 G 10 are satisfied, the weighing of consequences leads to the conclusion that a communication of these data ordered by statute under § 113b sentence 1 no. 3 TKG is to be accepted as an interim measure until the decision in the main proceedings. In § 1.1 and § 3 G 10, the legislature created a provision pursuant to which encroachments on Article 10.1 GG by the authorities for the protection of the constitution have also been permissible in the past. In the process of the weighing of disadvantages advisable in the present case, it is appropriate, in cases in which the requirements named in § 1.1 and § 3 G 10 are satisfied, to accept the communication of the traffic data stored under § 113a TKG to perform the duties of the authorities for the protection of the constitution until the decision of the Senate in the main proceedings, and to subordinate the associated disadvantages for the persons affected to the increase in information on such particularly serious threats. Communication to the authorities for the protection of the constitution of the data stored and use thereof by them exceeding this under § 113a TKG, on the other hand, is impermissible in the interim period.