German Federal Constitutional Court rejects data retention law

By EDRi · March 10, 2010

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Deutsch: [Deutsches Bundesverfassungsgericht weist Vorratsdatenspeicherungsgesetz zurück |]

The German Federal Constitutional Court rejected on 2 March 2010 the
legislation requiring electronic communications traffic data retention for a
period of 6 months.

The legislation on data retention, implementing the similar EU Directive,
was passed by the Bundestag on 9 November 2007 and entered into force on 1
January 2008. On 31 December 2007, a constitutional complaint was brought to
the Federal Constitutional Court by 35 000 citizens (the largest number of
plaintiffs ever involved in a case) at the initiative of the German privacy
group AK Vorrat (Working group on data retention), one the plaintiffs being
the present Justice Minister Sabine Leutheusser-Schnarrenberger.

The court judges considered that the data storage was not secure enough,
that it was not clear what it would be used for and that it could “cause a
diffusely threatening feeling of being under observation that can diminish
an unprejudiced perception of one’s basic rights in many areas,” as stated
the president of the court, Hans-Jürgen Papier. They considered that “such
retention represents an especially grave intrusion” into citizens’ privacy.

The court did not annul the legislation entirely but suspended it, asking
for the immediate deletion of the data already collected and for the massive
modification of the law in order to provide stricter conditions for to the
use and storage of the data. According to the decision, the data should be
encoded and there should be “transparent control” of the information usage.

The ruling also stated that the data usage control process should involve
the government’s Commissioner for data protection and freedom of information
and that the secret use of data should be possible only in individual cases
and ordered by the court.

Following the court’s ruling, the German Working group on Data Retention
made a list of five demands that basically ask from the Federal Government
to cooperate with other states and bodies to repeal the EU data retention
directive, to never re-enact the German data retention law and to refuse
data collection on innocent citizens such as air travellers data.

The group believes that “European citizens should be given the right to file
constitutional complaints directly with the European Court of Justice” and
that all existing “security” measures should be reviewed by an independent
body in order to “systematically examine their compatibility with our
fundamental rights, their effectiveness, their cost, their harmful
side-effects and alternatives.”

After Germany’s and Romania’s unconstitutionality decisions and after other
EU members countries have not succeed in implementing the directive, the
Working Group publicly announced it would continue the efforts to persuade
the EU “to repeal its data retention directive”.

Class-action law suit against data retention (5.03.2010),en/

Arbeitskreis Vorratsdatenspeicherung Press Conference – Constitutional
complaint filed against German Telecomms Data Retention Act (31.12.2007),en/

German High Court Limits Phone and E-Mail Data Storage (2.03.2010),1518,681251,00.html

German court strikes blow against EU data-retention regime (3.03.2010)

Decision of the Federal Constitutional Court (only in German, 2.03.2010)

EDRi-gram: German Constitutional Court held hearing on data retention