German Constitutional Court limits data retention law

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The Federal German Constitutional Court issued a preliminary decision on 19
March 2008 in the case supported by 34 000 people against the German
implementation of the data retention directive. The preliminary ruling has
considered that parts of the act are unconstitutional pending review.

The decision does not prohibit the electronic communication companies to
gather the data, but limits its use, explaining that the retained data
can be transferred to law enforcement authorities only in cases of serious
crimes and with a judicial warrant.

The data shall be made available only in prosecuting or judging serious
crime cases when other evidences are not accessible or are not enough. At
the same time the Government is obliged to send a report to the
Constitutional Court by 1 September 2008 on the practical effects of the
data retention and the implementation of the present preliminary ruling.

The German Working Group on Data Retention, the NGO that initiated this
protest, expressed their satisfaction about the preliminary decision and
remained optimistic about the final result: “This is but a preliminary
ruling. The Constitutional Court is traditionally reserved with regard to
preliminary rulings. We remain confident that in cooperation with over
30.000 other applicants, we will be able to stop the surveillance of
telecommunications in the absence of reasonable suspicion”, declared Werner
Hülsmann, member of the Working Group.

The NGO also asked for the resignation of the responsible Minister of
Justice, Brigitte Zypries. Patrick Breyer, member of the Working Group,
explained the demand: “Mrs Zypries negotiated the data retention rules
against the will of the German Parliament, agreed to an EU directive which
lacks a legal basis and tried to impose data retention in Germany in
violation of the clear jurisprudence of the Federal Constitutional Court.
This intentional breach of our constitution disqualifies her as a Minister
of Justice.”

The German Constitutional Court will take a final decision on the case later
this year, waiting also for the European Court of Justice’s decision in the
action started on 6 July 2006 – Ireland vs. Council of the European Union,
European Parliament (Case C-301/06).

In the meantime, the Working Group gives recommendations on its homepage on
how to circumvent data retention and asks citizens to take their deputies to
task and ask them just how they intend to effectively prevent such
violations of our constitutional rights in the future.

Press Release – German Constitutional Court on Data Retention case
(19.03.2008)
http://www.bundesverfassungsgericht.de/en/press/bvg08-037.html

Germany’s Top Court Curtails Disputed Data Storage Law (19.03.2008)
http://www.dw-world.de/dw/article/0,2144,3203058,00.html

Data retention in Germany partly suspended by Constitutional Court
(19.03.2008)
http://www.vorratsdatenspeicherung.de/content/view/209/1/lang,en/

EDRI-gram: German constitutional challenge on Data Retention (12.03.2008)
http://www.edri.org/edrigram/number6.5/germany-data-retention