New Data Retention ruling is a victory for civil society

The Court of Justice of the European Union (CJEU) has announced a historic judgement today: the current telecommunications data retention in Germany violates the fundamental rights of people in the European Union. The underlying data retention law is therefore null and void.

“For twenty years, politicians have insisted on data retention despite the problematic consequences it has on fundamental rights, moving the public focus away from the real issues. They have therefore prevented the introduction of necessary measures that respect fundamental rights.” — padeluun, co-founder of Digitalcourage

With telecommunications data retention, profound details of citizens’ private lives can be inferred. It is not necessary to know the content of the communications as the connection data (metadata) alone can give insights into people’s circumstances, threaten the secrecy of press informants, or uncover confidential relationships with doctors, counselling services or legal advisers. A blanket data retention without cause or suspicion creates an atmosphere of constant surveillance. This cannot be allowed to happen in a democratic society.

The CJEU clearly states in its ruling that storing connection data (metadata) always constitutes a grave intrusion into the fundamental rights of the persons affected – even if retention periods are kept short.

The CJEU’s judgement is a great success based on immense long-term work by civil society. Since 2002, EDRi member Digitalcourage (then named FoeBuD) has been fighting against data retention, organising several large demonstrations under the motto “Freedom Not Fear” (German original: Freiheit statt Angst), inspiring arguments, information exchange, creativity and direct action, and forming a broad range of allies. Rena Tangens and padeluun, founding members of Digitalcourage, were part of the constitutional complaint by the German Working Group on Data Retention (German: Arbeitskreis Vorratsdatenspeicherung / AK Vorrat) that succeeded in overturning the first German law on data retention in 2010. Digitalcourage has now engaged in civil society’s fight against this kind of mass surveillance for more than 20 years.

In February 2018, a currently pending complaint by Digitalcourage was received at the Federal Constitutional Court of Germany (reference BVer2683/16). More than 37,000 people co-signed the complaint and more than twenty prominent co-complainants supported it – among them were comedian and author Marc Uwe Kling, the former president of Germany’s largest trade union, ver.di, Frank Bsirske, author Juli Zeh, professor emeritus for Christian social ethics, Friedhelm Hengsbach, Pirate Party MEP, Patrick Breyer, and the head of the German Journalists Association (Deutscher Journalisten-Verband, DJV), Frank Überall.

Digitalcourage calls on the German government: Stay away from blanket data retention

The German Justice Minister Marco Buschmann said in his press conference after the announcement of the CJEU ruling: “This is a good day for civil rights”, expressly acknowledging the engagement of civil society. His cabinet colleague, Interior Minister Nancy Feaser, however, issued yet another call for a blanket storing of all internet addresses without individual cause.

Marco Buschmann expects a new draft law within two weeks. In that case, these two ministries will have a lot to discuss. Digitalcourage calls on the government not to reverse the spirit of a CJEU ruling yet again.

“Dear parties in the German government coalition: You wrote in your coalition agreement that there will be no blanket data retention. Therefore, stay away from blanket retention of IP addresses!” — Digitalcourage co-founder Rena Tangens

Digitalcourage already outlined in 2020 how severe crime can be combated effectively, in particular violent crimes against children. The Interior Minister used the crimes against children argument to justify the need for data retention in her call for IP address retention. Effective measures that would be in line with the rule of law include an extension of preventive measures, sufficient staffing of the police and the judiciary to safeguard the immediate persecution of concrete evidence, and better working conditions for investigators. Digitalcourage recommends this article as reading material to the Interior Minister.

The press release was first published by Digitalcourage in German here. Thanks to Sebastian Lisken from EDRi member Digitalcourage for the English translation.

Contribution by: EDRi member Digitalcourage