Federal Constitutional Court - Press office -
Press release no. 92/2008 of 6 November 2008
Order of 28 October 2008 – 1 BvR 256/08 –
Extended application for a temporary injunction in the matter of "data
retention" succeeds in part
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.
This press release is also available in the original german version.
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