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“That poor retention could not so much hold”*: German data retention unconstitutional

Posted on March 2, 2010 | Filed Under communication technologies 

Today, the German Constitutional Court declared the German laws implementing the data retention directive unconstitutional (not compatible with article 10 of the “Grundgesetz” [Basic or Fundamental Law, ie the German constitution]); see the press release (at the moment only in German) and the full judgment (only in German).

While it certainly delivered a wide reaching and substantial judgment, the German Constitutional Court does not take issue with the data retention directive, only with the specific implementing instruments in Germany. The Court explicitely refrained from a reference for a preliminary ruling by the ECJ, stating that the data retention directive is not per se incompatible with the privacy of telecommunications as enshrined in the German constitution. The judgment echoes - and quotes - the ECJ judgment C-301/06 Ireland v. Council and Parliament (see this post), stressing that the provisions of the data retention directive only ask for the retention of data by service providers, but do not govern access to data or the use thereof by the police or judicial authorities.

The German Constitutional Court then focuses on the principle of proportionality, which requires a sound statutory basis for data retention, taking into account the specific severity of this intrusion into the fundamental right of telecommunication privacy. The Court calls for sophisticated and perfectly clear rules regarding data security, data use, transparency and legal protection.

Regulations for data security have to provide a particularly high standard of safety, taking into account technical developments and constantly adapting to new expertise and insight. The Court rules out any “balancing” between data security and economic viewpoints. In other words: even very high costs cannot serve as an excuse for not implementing technically feasible measures to enhance data security.

And above all: the Court holds that access and use of stored data can only be considered proportionate, if they serve tasks of paramount importance for the protection of legal interests (”überragend wichtige Aufgaben des Rechtsgüterschutzes”).

*) Shakespeare, Sonnet CXII

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