Change in Germany's position on data retention

By EDRi · October 6, 2004

According to an article in the Frankfurter Allgemeine Zeitung Germany is changing its position on the proposal from the EU Council to oblige telecom and internet providers to store traffic data about all their customers for 12 to 36 months. The legislative chamber that represents Germany’s 16 states on national issues (the Bundesrat) voted on 1 October to ‘take notice of’ rather than support the EU proposal. Previously this important legislative body unsuccessfully tried to introduce mandatory data retention for at least 6 months in the new Telecommunication law. The current data retention regime in Germany allows for 90 days storage of traffic data.

Meanwhile, the German government has published a new draft law for telecommunication and post interception on behalf of the Customs Office. 2 Paragraphs of the previous law were declared unconstitutional by the Constitutional Court on 3 March 2004, for violating the communications secrecy guaranteed in Article 10. The new proposal defines the surveillance powers of the Customs Office much more precisely, listing for example the crimes that interception can be called for, in stead of the previous, more general description of ‘criminal offences of substantial importance’. Also, in case of a possible hand-over of personal data to other public institutions the materials must be marked as ‘sensitive’, to respect the communication secrecy.

The strong German constitutional protection of the communication secrecy might turn out to become crucial in the debate about general EU surveillance legislation, since a third pillar decision such as the data retention proposal can only be taken unanimously by all 25 member states.

FAZ English week edition ‘Stand on data altered’ (01.10.2004)

Draft proposal preventive telecommunication and post interception by the Customs Office (DATE)