In Germany, Data Retention refuses to die

By EDRi · March 25, 2015

The debate is intensifying in Germany on whether telecommunications data retention should be reintroduced. At the centre of the controversy is Sigmar Gabriel, the leader of the Social Democrats (SPD, the smaller party in Germany’s “grand coalition” government since 2013), and consequently a government minister for the economy and chancellor Angela Merkel’s deputy. Gabriel’s role is pivotal because his party would be the focus of any hope of balancing calls for data retention from the larger coalition partner, the Christian Democrats (CDU/CSU).

Data retention has been judged, twice, to illegally violate fundamental rights under the German constitutioanl framework. In March 2010, a ruling by Germany’s Federal Constitutional Court struck down Germany’s national data retention law that had implemented the European Union’s Data Retention Directive since the end of 2007. In April 2014 the Directive itself was invalidated by the Court of Justice of the European Union (CJEU).

This U-turn has happened almost simultaneously with another major shift in policy for the SPD, which changed the party’s position on the transatlantic free-trade agreement TTIP, to which it was previously opposed.

On data retention, Gabriel has surprised many with the strange range of arguments he has used to defend his position. He says he never really opposed the measure, in fact he voted for its introduction in 2007. But since the European Commission gave up its plans to introduce a new Data Retention Directive after the CJEU’s ruling, it has become clear that the plan is to leave it to Member States to muddle their own ways through this question.

After the recent terrorist attacks in Paris and Copenhagen Gabriel has shown little restraint on using just any event or argument to portray data retention as indispensable. This includes the claim that data retention was an important means for Norway to deal with right-wing terrorist Anders Breivik’s attacks in 2011. This seems weird as Norway didn’t have a law for data retention in 2011 and still doesn’t have one today. After making this claim twice and being challenged on this, the latest statement from the SPD is that Norway used the instrument without legal basis, with support from US secret services. So, allegedly Norway’s authorities have disregarded their own country’s law and relied on organisations known to operate without any regard for legal boundaries, whose methods may or may not fall under the European definition of telecommunications data retention. How this should make Europeans accept a surveillance instrument whose effectiveness is questionable and which clearly requires strict legal controls is hard to imagine, probably even for Gabriel himself.

Other examples of fact bending include a claim that the previous data retention law had been the work of a Christian Democrat-Liberal government, when in fact it was introduced in 2007 by a previous CDU–SPD “grand coalition” (in which Gabriel himself served as environment minister), and misrepresentations of the points were the Constitutional Court ruling of 2010 had found fault with that previous law.

Sigmar Gabriel has now made up his mind that the time has come to work on a new German data retention law and push it through the Bundestag. He has recently instructed SPD’s Heiko Maas, Minister of Justice, previously an outspoken sceptic of data retention, to come up with a draft law in cooperation with the Interior Minister, CDU’s Thomas de Maizière. Getting a majority in Parliament will not be a problem, given the coalition’s almost 80-percent majority of seats. But what the true motives are and how the measure could be seen as constitutional after the court rulings, remains a mystery.

Data retention is Norway must actually be called NSA (only in German, 20.03.2015)

SPD leader Sigmar Gabriel calls for data retention to be reintroduced (only in German, 15.03.2015)

Sigmar Gabriel retains misapprehensions (only in German)!156871/

An almost impossible law (only in German, 23.03.2015)

(Contribution by Sebastian Lisken, EDRi-member Digitalcourage, Germany)