German Parliament rejects motion against data retention

By EDRi · June 21, 2006

On 20 June the German Parliament rejected a resolution that would have
requested the federal government to join the action for annulment of the
EU telecommunications data retention directive at the European Court of
Justice (ECJ). The text had been introduced by the opposition parties
Greens, Liberals and Left Party and was supported by 133 parliamentarians.
But the grand coalition of the governing parties voted against it, with
one abstention from the Conservatives. The authors of the resolution argued
that the data retention decision should have been made in the “Third Pillar”
of the European Union structure in the form of a framework directive, which
would have required an unanimous vote in the Council of Ministers.

The governments of Ireland and Slovakia who voted against the
Directive during the final decision in February have already started a case
at the ECJ. Their chances are good, as the court’s recent decision
on the transfer of passenger data to the United States was taken on the
same grounds. The German opposition also asked to postpone
the transposition of the Directive into the federal law until this case is
decided, because even if the Directive is annulled, national laws would
still be valid. The EU Directive mandates the retention of all
telecommunications traffic data within the EU for 6 to 24 months for law
enforcement and national security purposes.

Parliamentarian Jerzy Montag from the Greens, who had drafted the
resolution, reminded his colleagues that the German Parliament and
Government had always asked for a framework decision, last time in a
February 2006 resolution. Therefore he criticized : “Commission and
Council have changed the horses during the action, while the cart stayed
the same”. Minister of Justice Brigitte Zypries claimed that the
government had “enforcedly accepted” the change of the legal grounds for
data retention in order not to endanger the substantial outcome.

The majority of the parliamentarians was unimpressed by several
last-minute attempts from non-governmental organizations to support the
opposition’s motion. On 17 June, around 250 citizens followed the call
by a broad coalition of 15 civil liberties and other groups for a
demonstration “Freedom instead of Security Delusion” in Berlin. It was
mainly organized by the Working Party on Data Retention, an informal
network set up in December 2005 with the help of German EDRi members
Netzwerk Neue Medien (NNM) , FoeBuD, and Forum InformatikerInnen für
Frieden und gesellschaftliche Verantwortung (FIfF). The demonstration was
the first attempt in years to bring anti-surveillance protest to the streets
and, considering the short preparation time of less than three weeks, it was
seen by the organisers as a success to build on.

The Forum Human Rights, a coalition of 45 German human rights organizations,
also published a position paper on data retention on 16 June and
formally submitted it to the Parliament before the vote. The paper
criticizes data retention as “totally disproportionate and an attack on
the foundation of a free and democratic society”.

The Forum Human Rights joined others in their analysis that any law on
mandatory data retention would be in violation of both the European
Convention on Human Rights and the German Constitution. If the Directive is
transposed into German law, several civil liberties groups are already
preparing to challenge it at the Constitutional Court. These legal and
political activities, seen together with the demonstration that sparked a
number of creative activities, are an indication that anti-surveillance
activities are getting more momentum in Germany.

German Parliament rejected the Resolution “Reviewing the Directive on Data
Retention by the European Court of Justice” (in German only, 20.06.2006)

Working Party on Data Retention (in German only)

Protest march “Freedom rather than obsession with security” (17.06.2006)
In English
In German, with after-action information
Pictures from the demonstration (17.06.2006)

Forum Human Rights Position Paper “Data retention violates fundamental
rights and undermines a free society” (in German only, 16.06.2006)

(Contribution by Ralf Bendrath, German EDRi member Netzwerk Neue Medien)