German draft law on data retention made public
(Dieser Artikel ist auch in deutscher Sprache verfügbar)
On 8 November 2006, the German Minister of Justice Brigitte Zypries
presented a draft law aimed at transposing the EU directive on data
retention. The law would override the recent jurisprudence on IP logging by
mandating the retention of traffic data for a period of six months.
Retention requirements are also to apply to anonymization services, making
them practically superfluous. Furthermore anonymous e-mail accounts are to
be banned. Access to traffic data shall be permissible for the investigation
of “substantial” offences, but also for the investigation of any offence
committed by use of telecommunications networks (including sharing of
copyrighted content). The law is to enter into force on 15 September 2007.
Until 15 March 2009 data retention is to be optional for providers of
internet access, Internet telephony and e-mail services.
The draft law was sharply criticised by the activist Working Group on Data
Retention (Arbeitskreis Vorratsdatenspeicherung) for being unconstitutional.
The German Federal Constitutional Court (Bundesverfassungsgericht) has
repeatedly ruled in the past that human rights permit the collection of
personal data only where they are needed for a specific purpose. The Working
Group called for the transposition process to be aborted or, at least,
suspended until the ECJ has ruled on Ireland’s action for annulment of the
directive on data retention. The Working Group also criticized the German
draft law for going beyond EU requirements in relation to anonymization
services, e-mail services and access to retained data. The EU directive
applies to the investigation of “serious” offences only and does not ban
anonymous or anonymization services.
The activist group presented a class action to be submitted to the Federal
Constitutional Court in case the proposed law is adopted. The Court is to be
asked to provisionally suspend data retention in Germany while examining its
constitutionality. According to the draft application published on the
Internet, the EU directive on data retention is void for violating human
rights and for lacking a legal basis. The planned class action is supported
by several German jurists and is open for all German citizens to join.
Draft law on data retention in Germany (in German only, 8.11.2006)
Website of the Working Group on Data Retention including information on the
class action against data retention (in German only)
(Contribution by Patrick Breyer – Working Group on Data Retention – Germany)