Bundesverfassungsgericht

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Application for a temporary injunction in the matter of "data retention" succeeds in part

Press release No. 37/2008 of 19 March 2008

Order of 11 March 2008
1 BvR 256/08

The Act for the Amendment of Telecommunications Surveillance (Gesetz zur Neuregelung der Telekommunikationsüberwachung) of 21 December 2007 serves inter alia to implement the European Union directive on data retention in German law. For this purpose, Article 2 of the Act contains amendments to the Telecommunications Act (Telekommunikationsgesetz - TKG). The constitutional complaint filed by eight citizens has as its subject the newly drafted §§ 113a, 113b TKG. § 113a TKG governs the duty of storage of data. Suppliers of telecommunications services are obliged to store for a period of six months specific traffic and locations data which are created when mobile and landline telephones, email and internet are used. § 113b TKG governs the use of the stored data. It provides that the retained data stored may be retrieved for the purposes of the prosecution of criminal offences, the warding off of substantial dangers to public security and the performance of intelligence tasks. The Act contains no independent authorisation of retrieval, but instead is subject to independent statutory provisions on data retrieval made with reference to § 113a TKG. To date, the only legislation that refers to § 113a TKG is the Code of Criminal Procedure (§ 100g of the Code of Criminal Procedure (Strafprozessordnung - StPO)); this section permits, for the purpose of prosecution of criminal offences, a request for information on telecommunications traffic data which is stored solely on the basis of the duty to retain data contained in § 113a TKG.

The complainants' application to suspend §§ 113a, 113b TKG by way of a temporary injunction until the decision on the constitutional complaint was successful in part. The First Senate of the Federal Constitutional Court permitted the application of § 113b TKG insofar as it governs the use of the stored data for the purpose of prosecution only in a modified form until the decision in the main action. Pursuant to the request for retrieval of a criminal prosecution authority, the telecommunications service provider must collect and store the data requested. But the data are only to be communicated to the criminal prosecution authority if the subject of the preliminary investigation is a serious criminal offence in the meaning of § 100a.2 StPO where the offence is serious in an individual case, the suspicion is justified by specific facts and the investigation of the facts in another way would be considerably more difficult or impossible (§ 100a.1 StPO). In the other cases, the data are not to be communicated 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 retention and of the present temporary injunction. In other respects, the First Senate rejected the application for a temporary injunction; in particular, it refused to suspend the operation of § 113a TKG, which alone governs the duty of storage of data.

In essence, the decision is based on the following considerations:

The Federal Constitutional Court may exercise its authorisation to suspend the entry into force or the operation of a statute only with the greatest restraint, since the issuing of such a temporary injunction is always a significant encroachment on the legislative discretion of parliament. The strictness of the review standard is increased even more if a temporary injunction is sought suspending the entry into effect of a provision if that provision implements mandatory requirements of Community law in German law. There is a risk that such a temporary injunction will exceed the competence of the Federal Constitutional Court to decide in the main action, and it may in addition interfere with the Community interest in an effective enforcement of Community law.

It is not necessary here to decide conclusively whether and subject to what conditions the Federal Constitutional Court may suspend the operation of a statute insofar as it transposes mandatory Community-law requirements. However, such a temporary injunction requires at least that the persons affected must be threatened by particularly serious and irreversible damage the weight of which makes it appear acceptable in temporary injunction proceedings to exceed the competence of the Federal Constitutional Court to decide in the main action and severely to impair the Community interest in the effective operation of Community law. By these criteria, the application for the issue of a temporary injunction is to be granted only in part.

I. A suspension of the operation of § 113a TKG (duty of storage) is not possible. The data retention alone does not demonstrate particularly serious and irreversible damage that might justify suspending the operation of the provision by a temporary injunction in exceptional cases. It is true that the retention of sensitive data, comprehensive and without occasion, on virtually everyone, for government purposes that at the time of the storage of the data cannot be foreseen in detail, may have a considerable intimidating effect. However, the prejudice to an individual's freedom and privacy contained in data retention deepens and becomes specific as a potentially irreversible individual impairment only as a result of a retrieval of the person's data.

II. On the other hand, the use of the retained data for purposes of the prosecution of criminal offences permitted by in § 113b sentence 1 no.1 TKG must be suspended in part until the decision on the constitutional complaint. The required weighing of consequences shows that public interest in the operation of the provision is in part outweighed by the damage that is threatened by the operation of the provision.

1. If no temporary injunction were issued, but it later transpired that the constitutional complaint was well-founded, individuals and the general public would be threatened in the interim period by damage of quite considerable weight. The retrieval of traffic data itself is a serious and irreversible encroachment on the fundamental right under Article 10.1 of the Basic Law (Grundgesetz - GG; protection of the secrecy of telecommunications). Such a retrieval of data makes it possible to obtain extensive knowledge of the communications behaviour and the social contacts of the person affected. In addition, in many cases the knowledge obtained by the retrieval of traffic data will form the basis of further investigation measures. Finally, the retrieved traffic data and the knowledge obtained through further investigation measures that build on the retrieval of traffic data may form the basis of criminal proceedings, and possibly of a criminal conviction of the person affected, that would not have been possible without the data retention and the data retrieval.

2. If a temporary injunction relating to the retrieval of the retained data were issued, but the changed provisions were later found to be constitutional, there might be disadvantages for the public interest in effective prosecution of criminal offences. However, to some extent these disadvantages carry less weight and should be accepted if it is not the retrieval request that is excluded, but merely the transmission and use of the data collected by the provider in question in response to the request that is suspended. If the provisions challenged by the constitutional complaint are found to be constitutional, these data could then subsequently be used in full for the purpose of criminal prosecution. There need then be no fear that the criminal prosecution is frustrated because the retained data have meanwhile been deleted.

However, the transmission and use of the data collected by a services provider in response to a request for retrieval should not be restricted in the cases in which the subject of the preliminary investigation is a serious criminal offence in the meaning of § 100a.2 StPO where the offence is serious in an individual case, the suspicion is justified by specific facts and the investigation of the facts in another way would be considerably more difficult or impossible (§ 100a.1 StPO). In constitutional temporary injunction proceedings, it is necessary to proceed on the basis of the legislature's assessment, which is that the criminal offences named in § 100a.2 StPO are so serious that they may even justify severe encroachments on the fundamental right under Article 10.1 GG. In these cases, therefore, public interest in the prosecution of criminal offences has as a general rule such a weight that delay by a temporary injunction is unacceptable. In this connection, it is not necessary to examine, in the temporary injunction proceedings, whether the German legislature was under an obligation under Directive 2006/24/EC to include all the criminal offences listed in § 100a.2 StPO in the authorisation for retrieval of § 100g StPO.

In contrast, if these requirements are not satisfied, the transmission and use of the retained data is to be temporarily suspended. In particular in the cases in which the authorisation of retrieval StPO (§ 100g StPO) enables retrievals of traffic data where there is a suspicion of other "criminal offences that even in an individual case are of substantial importance" (§ 100g.1 no. 1 StPO) or a suspicion of criminal offences that have been committed by means of telecommunications (§ 100g.1 no. 2 StPO), it is necessary to accept the risk that a delay of the use of the data may frustrate the preliminary investigation in its entirety. The fact that the remaining criminal offences were not included in the list of § 100a.2 StPO indicates that the legislature attached less significance to them with regard to encroachments on the fundamental right under Article 10.1 GG. Correspondingly less weight is to be attached to the damage arising from a suspension of the use of the data that has to be weighed against the infringement of the fundamental rights of the persons affected in the weighing of consequences.

III. There is no occasion to grant a temporary injunction relating to the use of data for preventive purposes (§113b sentence 1 nos. 2 and 3 TKG), since to date there have been no retrieval authorisations under non-constitutional law that refer explicitly to § 113a TKG.