German constitutional challenge on Data Retention

By EDRi · March 12, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The complaint challenging the German data retention law in front of the
Federal Constitutional Court in Karlsruhe has become the biggest
constitutional case in German history with the submission of more than
34000 signatures backing up the action. The Working Group on Data
Retention has also prepared an amicus curiae brief that it wants to submit
to the European Court of Justice in the case Ireland vs. the Data Retention
Directive and that can be signed by other NGOs.

In early February 2008, the German Federal Constitutional Court sent the
application for the suspension of the data retention act to the Government,
both chambers of the Parliament as well as the Governments of the Länder for
comments. The court asked, among others, for confirmation of a study
according to which, even before data retention was enacted, only 2% of the
requests made by authorities could not be served by the service providers.
The Federal Constitutional Court has announced it would decide on the
application for an injunction in the month of March.

On 29 February 2008, the “Arbeitskreis Vorratsdatenspeicherung” (Working
Group on Data Retention) submitted to the Court the mandates of over 34 000
citizens willing to fight againts the storage of their telecommunications
over a period of six months. The complainants’ mandates filling
102 folders and 12 packing cases were handed over to the Federal
Constitutional Court in Karlsruhe on behalf of Berlin attorney Meinhard

Afterwards, on the Platz der Grundrechte (Basic Rights Square), members of
privacy NGO Working Group on Data Retention symbolically hang 17 theses
for the defence of basic rights in modern times. Some panels read contrary
statements by politicians such as the German chancellor Angela
Merkel who said: “There must not be any space in which terrorists can
communicate without the possibility of government access.”

The members Working Group on Data Retention commented: “We demand that
government and parliament initiate an independent review of all surveillance
powers introduced since 1968 with regard to their effectiveness and adverse
side-effects. We also demand a halt to new surveillance bills further
encroaching on our basic rights. Among those plans are the surveillance of
flight passengers, the central population register, biometric and electronic
ID cards as well as police powers for the Bundeskriminalamt (Federal
Criminal Police Office) including state spying into personal computers.”

In a parallel activity, the German Working Group Against Data Retention has
drafted an amicus curiae brief that is to be presented to the European Court
of Justice regarding the action started on 6 July 2006 – Ireland vs. Council
of the European Union, European Parliament (Case C-301/06). The amicus
curiae brief is an attempt to add substantial arguments, as the Irish
challenge is based only on formal grounds. The signatories claim that the
data retention directive is first and foremost illegal on human rights
grounds. They urge the court to base its decision on the incompatibility
with human rights rather than the lack of competence and are explaining why
the present text is breaching the right to respect for private life and
correspondence (Article 8 ECHR), the freedom of expression (Article 10 ECHR)
and the protection of property (Article 1 PECHR).

Other NGOs are invited to join the German Working Group Against Data
Retention by signing the petition as well.

German Working Group Against Data Retention – The Amicus Curiae Brief

Historic class-action lawsuit filed against telecommunications data
collection (29.02.2008),en/

34,443 applications lodged against data retention (only in German,

EDRI-gram: German data retention act challenged (16.02.2008)