Federal Constitutional Court - Press office -
Press release no. 37/2008 of 19 March 2008
Order of 11 March 2008 – 1 BvR 256/08 –
Application for a temporary injunction in the matter of "data retention" succeeds in part
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.
This press release is also available in the original german version.
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