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German Constitutional Court Decided on Data Retention in Germany

Posted by Dragoslava Greve on March 3, 2010

German Working Group on Data Retention (AK Vorrat) has published the following press release (and accompanying information).
I copy it here, because the German Court decision is an important example of brilliant jurisprudence, and a great example what people can do together (there were 30 thousand people, who signed the motion to the Court!)!
The document below was originally sent by Patrick from Daten-Speicherung.de

“The Court’s summary of the ruling is as follows (roughly translated):

1. The preventive retention of communications data by private service providers on a permanent basis for a period of six months, as provided for by directive 2006/24/EC, is not as such incompatible with Article 10 of the German constitution [privacy of correspondence, see http://www.iuscomp.org/gla/statutes/GG.htm#10%5D; it is therefore irrelevant whether the directive has priority or not.

2. The principle or proportionality requires the legal enactment of such data retention to take into account the exceptional intensity of the interference with human rights that results of such a measure. Sophisticated and clear-worded rules with regard to data safety, data use, transparency and legal remedy are required.

3. [not internationally relevant]

4. With regard to data safety, legislation is required that provides for a high standard of safety in a clear-worded and compulsory way. It must in principle be legally ensured that this standard has regard to the technical state of art, is continuously adapted to new findings and is not fully made subject to a balancing against general financial aspects.

5. Access to and the direct use of the data is proportionate only if serving the protection of interests of preeminent importance. In the area of prosecuting crime a suspicion of a grave crime, based on specific facts, is required. Access for preventive and intelligence purposes may be allowed only on condition of an indication for a specific danger to the body, life or freedom of a person, to the existence or security of a state or of a common danger.

6. These requirements do not apply to the indirect use of the data by telecommunications operators where complying to official requests for the identification of the user of an IP address. The prosecution of administrative offenses will justify such use only in legally defined cases of exceptional importance.”

The Court ruling goes on to say that the German implementation of data retention did not satisfy the conditions set out. The provisions on data retention in German law were therefore ruled unconstitutional and invalid. This means that as of yesterday, no data must or may be retained under data retention rules in Germany (telcos mostly retain data for up to a week for “data safety” purposes however; this will continue even after yesterday’s ruling until the courts will have decided on that matter).

The conservatives in the government coalition are pushing for re-enacting data retention as soon as possible, meeting the conditions set out by the Court. The liberals in the government coalition say they are not in a hurry and want to see what will come of the revision of the data retention directive first. As the minister of justice, who is competent for drafting such a law, is a liberal, it is likely that we will be able to prevent a quick re-enactment of data retention in Germany. However it is crucial that the EU data retention requirement is revoked soon. I hope we will soon have the Commission’s reply on the formalities of a citizen’s initiative to that effect.

Press release by the German Working Group on Data Retention (AK Vorrat), 2 March 2010:

After data retention ruling: Civil liberties activists call for political end to retention of telecommunications data

+++ Data retention opposed by 70% of German population +++ European Citizens’ Initiative for repealing the EU directive on data retention announced +++ Legal action to be continued +++

The German Working Group on Data Retention has today announced a Europe-wide campaign to end Internet and telephone data retention. This follows the German Constitutional Court’s ruling on a mass complaint made by more than 34,000 citizens. According to a newly-published poll, 69.3% of all Germans oppose data retention, making it the most strongly rejected surveillance law.[1]

“The recording of confidential contacts and movements of the entire population in the absence of any suspicion is unacceptable and must stop immediately”, says Florian Altherr of the Working Group. “In starting an initiative to this end, the Federal Minister of Justice can count on the support of EU Commissioner Viviane Reding as well as of many states such as Austria, Belgium and Romania, all of which do not have data retention laws in place.”

“In order to bring the massive rejection of blanket data retention home to politicians we are in the process of preparing a European Citizens’ Initiative. With the signatures of one million opponents to the permanent logging of our Internet and phone use we want to persuade the EU to repeal its data retention directive”, announces data protection activist padeluun of the Working Group.

Patrick Breyer of the Group adds: “At the same time we will continue our legal fight against data retention. Today’s decision proclaiming the recording of the entire population’s behaviour in the absence of any suspicion compatible with our fundamental rights is unacceptable and opens the gates to a surveillance state.”

The German Working Group on Data Retention is making five political demands after today’s ruling:
1. The Federal Government, the Federal Minister of Justice and Parliaments must now cooperate with other like-minded states and bodies to take steps to repeal the redundant and detrimental data retention directive.
2. The German law on data retention, going far even beyond EU requirements and – according to the German Constitutional Court – unconstitutional, must not be re-enacted.
3. European citizens should be given the right to file constitutional complaints directly with the European Court of Justice.
4. The Federal Government must not agree to any further collection of information on citizens not suspected of any wrong-doing in the name of security, such as the air travelers file proposed by the EU. Mass data pools that were introduced in the past, such as the registration of Internet use by the Federal Office for Information Security or the employee information system ELENA, must be closed down.
5. An independent review of all existing “security” measures must take place in order to systematically examine their compatibility with our fundamental rights, their effectiveness, their cost, their harmful side-effects and alternatives.

Background information:

Communications data enables the tracing of who has contacted whom via telephone, mobile phone or e-mail. In the case of mobile calls or text messages via mobile phone, the user’s location is also logged. Data retention allows citizens’ movements to be traced and personal and business contacts to be monitored. Information regarding the content of communications such as personal interests and individual life circumstances can also be deduced.

A study commissioned in 2008 shows that data retention is acting as a serious deterrent to the use of telephones, mobile phones, e-mail and Internet. The survey conduced by research institute Forsa found that with communications data retention in place, one in two Germans would refrain from contacting a marriage counselor, a psychotherapist or a drug abuse counselor by telephone, mobile phone or e-mail if they needed their help. One in thirteen people said they had refrained from using telephone, mobile phone or e-mail at least once because of data retention, which extrapolates to 6.5 Million Germans in total.

German NGO Working Group on Data Retention (Arbeitskreis Vorratsdatenspeicherung) organised several protest marches against the scheme. Last year, 20.000 people protested against surveillance in Berlin.[2]
About Arbeitskreis Vorratsdatenspeicherung (German Working Group on Data Retention):

The Arbeitskreis Vorratsdatenspeicherung (AK Vorrat) is a Germany-wide organisation which campaigns against extensive surveillance in general and the blanket logging of telecommunications and other behavioral data in particular.

Homepage und contact details: http://www.vorratsdatenspeicherung.de

Footnotes and Links:
[1] Poll on data retention (in German, PDF)
[2] Protest march “Freedom not Fear”

About Arbeitskreis Vorratsdatenspeicherung (German Working Group on
Data Retention):
The Arbeitskreis Vorratsdatenspeicherung (AK Vorrat) is a Germany-wide
organisation which campaigns against extensive surveillance in general and the
blanket logging of telecommunications and other behavioural data in particular.
Homepage and contact details: http://www.vorratsdatenspeicherung.de

Previous press releases:
1. Unanimous rejection of proposed telecommunications data retention
2. Thousands of people participated in nationwide protests against data retention (07/11/2007)
3. Constitutional complaint filed against German Telecomms Data Retention Act (31/12/2007)
4. Historic class-action lawsuit filed against telecommunications data collection (29/02/2008)
5. Data retention in Germany partly suspended by Constitutional Court – NGO demands resignation of Minister of Justice (19/03/2008)
6. After ruling on data retention: activists remain confident (10/02/2009)
7. Administrative Court: Data retention is “invalid” (16/03/2009)
8. Civil Liberties Groups Ask EU to Repeal Data Retention Directive

More information:
1. Our mission statement
2. Joint statement on data retention
3. Class-action law suit against data retention

This press release on the Internet

Because in Bulgaria there are similar attempts (the Parliament just passed a law, which, in my opinion, enhances the data retention beyond the scope of the EU Directive, and is stretching the Constitution wide), the decision of the German Court might be of importance to Bulgaria, as well. Internet Society – Bulgaria, which I have the honor of chairing, has tried to influence (see this section at our blog, and this opinion), to the degree possible, the process in drafting the legislation in the Bulgarian Parliament, but not to the point, which would have made us feel comfortable with the language of the law. We are considering other options in the future, and we’ll be sending later today a letter to the President, the Ombudsman of the Republic, and the Chief Prosecutor, all of whom can request that the Bulgarian Constitutional court announces a particular article in the law unconstitutional.


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