German Federal Constitutional Court rejects data retention law

10. 3. 2010 | 00:00

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)
http://www.vorratsdatenspeicherung.de/content/view/51/1/lang,en/

Arbeitskreis Vorratsdatenspeicherung Press Conference - Constitutional
complaint filed against German Telecomms Data Retention Act (31.12.2007)
http://www.vorratsdatenspeicherung.de/content/view/184/79/lang,en/

German High Court Limits Phone and E-Mail Data Storage (2.03.2010)
http://www.spiegel.de/international/germany/0,1518,681251,00.html

German court strikes blow against EU data-retention regime (3.03.2010)
http://euobserver.com/9/29595

Decision of the Federal Constitutional Court (only in German, 2.03.2010)
http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg10-011

EDRi-gram: German Constitutional Court held hearing on data retention
(16.12.2009)
http://www.edri.org/edrigram/number7.24/german-constitutional-court-hear...

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