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German Federal Constitutional Court

Citation: German Federal Constitutional Court (BVerfG), Decision 1 BvR 256/08 of 2 March 2010, No. (1-345),
http://www.bverfg.de/entscheidungen/rs20100302_1bvr025608.html

Free for non-commercial use. Commercial use only with the consent of the court.

[See alsoCourt’s Press Release in English at: http://www.bundesverfassungsgericht.de/en/press/bvg10-011en.html]

Summary
the ruling of the First Senate of 2 March 2010

- 1 BvR 256/08 -

- 1 BvR 263/08 -

- 1 BvR 586/08 -

1. A six-month, as a precaution anlasslose retention of telecommunications traffic data by private service

providers, such as the Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006
(Official Journal L 105 of 13 April 2006, p. 54; hereinafter provided: Directive 2006/24/EC), is not per se
incompatible with Article 10 of the Basic Law, to a possible priority to this directive, it does not, therefore.
2. The principle of proportionality requires that the statutory embodiment of such data to the specific weight of
the storage associated with the fundamental interference due consideration. Required are sufficiently
demanding and normenklare regulations regarding data security, data use, transparency and legal
protection.
3. Ensuring data security and normenklare purpose of limiting the potential use of data is responsible as an
intrinsic part of the arrangement of the storage requirement of the federal legislature under Article 73 para 1
No 7 GG. Conversely, the case is determined to create the demand schemes itself and for the design of the
transparency and legal protections under the respective expertise.
4. Regarding data security regulations are needed, providing a very high safety standard normenklar and
binding. It is certainly the reason for the law to ensure that this is geared to the development of professional
discussions, new discoveries and insights continuously absorbs and is not subject to a free assessment of
general economic factors.
5. The retrieval and the direct use of the data are only proportionate, if they serve important functions of the
outstanding legal rights protection. In the field of law enforcement, this requires a reasonable suspicion by
certain facts of a serious crime. For the security and the fulfillment of the tasks of the intelligence they may
be authorized only when there is actual evidence of a concrete danger to life or liberty of a person for the
stock or the security of the Federation or a country or for a common danger.
6. One has only indirect use of the data on the issue of reporting to the telecommunications services provider
about the owners of Internet Protocol addresses is also independent of limiting crime or catalogs of legal
protection for law enforcement, security and the performance of intelligence tasks allowed. For the
prosecution of offenses, such information is allowed only by special weight in law expressly designated
cases.

1
Federal Constitutional Court 12th of Mr. S ...
13th the Lord V ...
- 1 BvR 256/08 - 14th of Mr. W ...
- 1 BvR 263/08 -
- 1 BvR 586/08 - - Represented by Dr. Dr. h.c. Burkhard Hirsch,
Rhein Allee 120, 40545 Dusseldorf -

Delivered on 2 March 2010 against the law to restructure the telecommunications

Kehrwecker official inspector of the office as a and other undercover
ministerial officer Investigative measures and the implementation of
Directive 2006/24/EC of 21 December 2007 (Federal
Law Gazette I p. 3198)

On behalf of the people - 1 BvR 263/08 -

In proceedings
about III.
the constitutional
1st Women's A ...,
2nd Women B ...
I. 3rd of Mr. B ...
4th Women B ...
1st of Prof. Dr. G ... 5th Women B ...
2nd of Dr. G ... 6th of Mr. B ...
3rd of Mr. K ... 7th of Mr. D ...
4th J ... GmbH, 8th Women's Dr. D ...
represented by its Managing Director, 9th Women Dr. E ...
5th U of the Lord ... 10th of Mr. F ...,
6th of Mr. R ... 11th Lord of the G ...
7th of Mr. Z ... 12th Women's G ...
8th of Dr. B ... 13th Women H ...
14th Women H ...
- Represented by Meinhard Starostik, 15th Women H ...
Schill Strasse 9, 10785 Berlin - 16th of Mr. H ...,
17th of Mr. H ...,
against § § 113a, 113b of the Telecommunications 18th of Mr. W ...
Act as amended by the Act to Reform the 19th of Mr. W ...
Telecommunications and other undercover 20th of Mr. T ...
investigative measures and the implementation of 21st of Dr. T ...
Directive 2006/24/EC of 21 December 2007 (BGBl I 22nd of Mr. S ...
p. 3198) 23rd by Dr. S ...
24th Women's S ...
- 1 BvR 256/08 - 25th Women's S ...
26th Women's S ...
27th Women's S ...
28th Women's P ...
II 29th N of the Lord ...
30th N of the Lord ...
31st Women's M ...
1st by Dr. Dr. h.c. H ... 32nd of Mr. M ...
2nd by Dr. S ... 33rd Women's M ...
3rd Women's L ... 34th Women's L ...
4th of Mr. B ... 35th Women's K ...
5th Women's P ... 36th of Mr. K ...
6th of Mr. K ... 37th of Mr. K ...
7th by Dr. L ... 38th Women's K ...
8th by Dr. W ... 39th Women's K ...
9th of Prof. Dr. S ... 40th by Dr. H ...
10th Women's S ... 41st Women H ...
11th of Mr. F ..., 42nd Women H ...

2
43rd Women H ...
- Represented by Prof. Dr. Jens-Peter Schneider,
Lürmannstraße 10, 49076 Osnabrück -
against the regulations on data retention in the law
establishing new rules on
Telecommunications and other undercover
investigative measures and the implementation of
Directive 2006/24/EC of 21 December 2007 (BGBl I
p. 3198)
- 1 BvR 586/08 -
, the Federal Constitutional Court - First Senate -
composed of Judges and magistrates
President paper,
Hohmann Dennhardt,
Bryde,
Gaier,
Eichberger,
Schluckebier,
Kirchhof,
Masing
to the hearing of 15 December 2009 by
Verdict
hereby:
1. § § 113a and 113b of the
Telecommunications Act, as amended by
Article 2, paragraph 6 of the Law on the
revision of telecommunications and other
undercover investigative measures and
the implementation of Directive
2006/24/EC of 21 December 2007 (Federal
Law Gazette I page 3198) they infringe
Article 10, paragraph 1 of the Constitution
and void.
2. § 100g, paragraph 1, sentence 1 of the
Code of Criminal Procedure, as amended
by Article 1, paragraph 11 of the Act to
restructure the telecommunications and
other undercover investigative measures
and the implementation of Directive
2006/24/EC of 21 December 2007 (Federal
Law Gazette I page 3198 violation), when
such traffic in accordance with § 113a of
the Telecommunications Act shall be
subject to Article 10, paragraph 1 of the
Basic Law and is to that extent void.
3. The interim result of the arrangement of
11 March 2008 in a procedure BvR 256/08
(Federal Law Gazette Part I page 659),
3
repeated and extended by order of 28
October 2008 (Federal Law Gazette I page
2239), recently reiterated by order of 15th
October 2009 (Federal Law Gazette I page
3704), the providers of publicly available
telecommunications services as part of
official requests for information collected,
but for the time being not in accordance
with § 113b sentence 1 sentence 1 of the
Telecommunications Act to the requesting
authorities sent but saved
telecommunications traffic to delete it
immediately. They may not be transmitted
to the requesting agencies.
4. The Federal Republic of Germany has to
report to the complainants their necessary
expenses from the constitutional process.
Reasons:
A.
1 Subject matter of the constitutional provisions are
the Telecommunications Act (hereinafter the Act) and
the Criminal Procedure Code ("the Code of Criminal
Procedure) that regulate a precautionary retention of
telecommunications traffic data from the provider of
publicly available telecommunications services for six
months and the use of this data.
I.
2
The challenged provisions have been by the law on
the revision of telecommunications and other
undercover investigative measures and the
implementation of Directive 2006/24/EC of 21
December 2007 (BGBl I S. 3198, the Law on the
revision of telecommunications) is added or changed,
and following its article 16, paragraph 1 on 1 January
2008 entered into force. They are supporting the
implementation of Directive 2006/24/EC of the
European Parliament and the Council of 15 March
2006 on the retention of data in the provision of
publicly available electronic communications services
produced and processed, and amending Directive
2002/58/EC (OJ L 105 of 13 April 2006, p. 54,
hereinafter : Directive 2006/24/EC).
3
1st All constitutional complaints directly against § §
113a and 113b Telecommunications Act, which, by
Article 2 of Law No. 6 on the reform of
telecommunications has been inserted into the
Telecommunications Act. The constitutional process
in a BvR 263/08 and 586/08 BvR a contact also
directly against § 100g Code of Criminal Procedure,
as amended by Article 11 of Law No. 1 for new
regulation of telecommunications, as far as the
collection of in accordance with § 113a TKG stored
data allows.
4 generate an itemized bill (§ 99 para 1 sentence 1 of
a) § 113a TKG aims to have regard to all publicly
available telecommunications traffic data that provide
information about participating in a
telecommunication connection ports, over time, has
taken place at the telecommunications, and on the
places that communicates from which is to save for
six months and to hold for the state to task
performance available. The law takes so long been
raised claims of the Federal Council on (see
Bundestag document 14/9801, p. 8; BRDrucks
<Beschluss> 755/03, p. 33 ff; BRDrucks 406/1/04;
BRDrucks 406/04 <Decision >; BRDrucks
<Beschluss> 723/05, p. 1), where in 2006, followed
with reference to the relevant actions on the
European level, and the German Bundestag. He
called on the Federal Government to approve the
draft Directive 2006/24/EC, and soon submit a draft
Implementation Act (see Bundestag 16/545, p. 4, 16 /
690, p. 2; BTPlenarprotokoll 16/19, p. 1430). Which
the federal government came with the draft law to
restructure the telecommunications, according to (see
Bundestag document 16/5846).
5 2-5 six months in the country or in another
§ 113a para 1 sentence 1 of the Act requires
providers of publicly available telecommunications
services, which in § 113a para 2-5 TKG individually
listed telecommunications traffic data to phones,
Internet and mobile phone calls, to send SMS, MMS
or similar message, to E-mail connections to the
Internet and store for a period of six months. Person
providing such services, without having to generate
traffic is to ensure under § 113a para 1 sentence 2 of
the Act, that the data is stored, and to notify the
Federal Network Agency, who collects the data.
Anyone providing telecommunications services, and
changed according to § 113a TKG to memorized data
is also required, under § 113a para 6 TKG for storing
the original and the changed data. After expiration of
the retention period, the data must be deleted
according to § 113a para 11 of the Act within a
month. The content of the communication and data
referring to § 113a para websites must not be stored
TKG 8. For the data points § 113a para 10 of the
Telecommunications Act in the telecommunications
sector due diligence and required that the access to
this data only specially authorized personnel are
reserved.
4
6
In addition to storage in accordance with § 113a TKG
is for providers of telecommunications services
pursuant to § 96 TKG also given the option to save
telecommunications traffic and use, to the extent
necessary to the aims described above is. After the
end of a telecommunications link such data must be
used according to § 96 paragraph 2 sentence 1 of the
Act, in essence, where they are needed to determine
the remuneration and settlement of accounts with the
participants (§ 97 para 1 sentence 1 of the Act), to
the Act), as required for the recognition, narrow or
eliminate disruptions or failures in
telecommunications systems required (§ 100 para 1
of the TKG), and to provide information about the
owners of connections of which threatening or
harassing phone calls went out (§ 101 para 1
sentence 1 TKG).
7
TKG § 113a provides:
8
§ 113a
9
Storage requirements for data
10 (
A) a person providing publicly available
telecommunications services to end users,
is required to save him from his service in
the use of traffic data generated or
processed in accordance with paragraphs
Member State of the European Union.
Anyone who publicly available
telecommunications services to end users
provides, without having to generate traffic
and to process, must ensure that the data
is stored according to Clause 1, and the
Federal Network Agency on the request of
who collects the data.
11
(2) The provider of publicly available
telephone store:
12
1st the phone number or other identifier of
the calling and called party and in the case
of conversion or forwarding any other
participating port,
13
2nd the beginning and the end of the
connection by date and time, indicating the
underlying zone,
14
3rd in cases where telephone service may,
under the different services are used,
information about the used service,
15
4th in the case of mobile telephony further:
16
a) The international mobile subscriber
identifier to the calling and called parties
access,
17
b) the international identification of the
calling and the called terminal,
18
c) the name of by the calling and called
parties connected with the beginning of the
compound used radio cells,
19
d) in the case of anonymous prepaid
services, the first activation of the service
by date, time and name of the cell
20
5th in the case of Internet telephony, the
Internet protocol address of the calling and
called party.
21
Sentence 1 shall apply when forwarding a
text message, multimedia message or
similar, taking into account instead of the
information in sentence 1 No. 2, the timing
of the dispatch and receipt are save the
message.
22
(3) The provider of services of e-mail store:
23
1st when sending a message to the ID of
the electronic mail and the Internet Protocol
address of the sender and the ID of the
electronic mailbox of each recipient of the
message,
24
2nd upon receipt of a message in an
electronic mailbox ID of the electronic
mailbox of the sender and the recipient of
the message and the Internet protocol
address of the sending telecommunications
system,
25
5
3rd accessing the electronic mailbox whose
ID and the Internet Protocol address of the
person using it,
26
4th the dates mentioned in paragraphs 1-3
of the service usage by date and time,
indicating the underlying zone.
2 (4) The provider of Internet access
services save:
28
1st to the subscriber for an Internet
Protocol address assigned to the Internet,
29
2nd a unique identifier of the port through
which the shipment of the Internet,
30
3rd the beginning and the end of the
Internet under the Internet Protocol address
assigned by date and time, indicating the
underlying zone.
31
(5) If the provider of telephone services
listed in that provision for the traffic referred
to in § 96 para 2 purposes even save or
record when the call is not answered or
because of an interference of network
management is unsuccessful, the traffic
data are also in accordance with this
provision store.
32
(6) a person providing telecommunications
services, taking account of the changes
under this provision, the records is to store
the original and the new indication and the
timing of the required transfer of this
information by date and time, indicating the
underlying zone.
33
(7) Any person who operates a mobile
network for the public is bound to the
stored in accordance with this provision
Titles of radio cells also hold data, giving
rise to the geographical locations of the
respective cell-sufficient radio antennas
and their main beam directions.
34
(8) The content of communication and data
requested pursuant to this provision,
websites must not be saved.
35
 (9) The storage of the data referred to in
paragraphs 1-7 shall be made so that
requests for information of the authorized
bodies can be answered immediately.
36
(10) is obligated under this provision
concerning the quality and the protection of
stored traffic data in the field of
telecommunications due diligence to be
observed. In the context of which he has
achieved through technical and
organizational measures that access to the
stored data only possible purpose of it
specially authorized personnel.
37
(11) The party liable under that provision,
the stored solely on the basis of this
provision is to delete data within one month
after the expiry of the period referred to in
paragraph 1, or to ensure the erasure.
38
b) § 113b Telecommunications Act regulates the
purposes for which authorized in accordance with §
113a TKG stored data is used. He distinguishes
between the transmission to the authorities to allow
such a use to perform their functions, and use by the
telecommunications providers themselves to supply
information pursuant to § 113 TKG, in particular the
owners of Internet connections.
39
aa) § 113b sentence 1 sentence 1 of the TKG
provides for the purposes for which the
telecommunications companies are allowed to
transmit the data to the authorities. The conditions
under which these may in turn use the data to be
regulated by federal or state law provision in a law
specialist. § 113b sentence 1 sentence 1 of the TKG
provides that the person obliged to store the data that
is stored solely on the basis of the storage obligation
in accordance with § 113a TKG, exclusively for the
prosecution of criminal offenses (No. 1), to prevent
serious risks to public safety ( may pass No. 2) and to
carry intelligence tasks (3) to the relevant parties.
40
The transmission of data to the relevant body may
take place at its request, pursuant to § 113b sentence
1 sentence 1 TKG only to the extent provided in the
relevant statutory provisions of the trade law by
reference to § 113a TKG explicitly and arranged in a
particular case.
41
The fachrechtliche enabling provision for the use of
the stored data according to § 113a of the Act is the
prosecution of the complainants in the proceedings a
BvR 263/08 and 586/08 attacked a BvR § 100g Code
6
of Criminal Procedure. For the security and the
performance of duties of the intelligence now refer §
20m of the Federal Criminal Law (hereinafter: BKAG)
in the wording of the law to respond to threats of
international terrorism by the Federal Office of 25
December 2008 (BGBl I p. 3083) and various
provisions in § 113a Land in the Act and enable the
official use of the stored data under this provision.
42
Lawfully stored in telecommunications traffic,
however, could also before the entry into force of §
113a TKG already for law enforcement or security for
the performance of intelligence tasks are used. Such
was § 100g para 1 Code of Criminal Procedure, as
amended by Article 1 of the Act to amend the Code of
Criminal Procedure of 20 December 2001 (BGBl I p.
3879, hereinafter § 100g StPO aF) is suspected of a
crime of considerable importance or a perpetrated by
a terminal equipment of telecommunications crime on
the basis of decision of the judge an obligation of
service providers to supply information on
telecommunication connection before. Also approved
as Article 34b para 2 no 1 of the Act on the functions
and powers of the Bavarian State Police (Police Task
law, 'the BayPAG) as amended by the Act amending
the Police Act and the Parliamentary Task control
panel-law of 24 December 2005 (GVBl p. 641) or §
8a para 1 sentence 1 No. 4 of the Law on
Cooperation of the Federal and State Governments in
matters of the Constitution and the Federal
Constitution (federal constitution protection law, 'the
BVerfSchG) as amended of the law to complement
the counter-terrorism law of 5 January 2007 (BGBl I,
p. 2) to security or performance of information about
existing tasks Constitution telecommunications
connection data obtained.
43
bb) § 113b sentence 1 sentence 2 TKG, the use of
the stored data according to § 113a TKG closed for
other than the sentence a phrase in § 113b 1 TKG
these purposes, although in principle. It can however
be an exception in the way that they may be used by
service providers and to supply information pursuant
to § 113 TKG.
44
§ 113 para 1 Telecommunications Act allows
authorities to call up so-called customer and inventory
data in accordance with § § 95 and 111 of the Act, in
particular of telephone numbers, access codes and
the names and addresses of subscribers. § 113b
allows a sentence of clause 2 TKG it to the service
providers, information about the owners of so-called
"dynamic" Internet protocol addresses (the IP
addresses) grant. IP addresses are not under the
current state of development of a port normally
associated with fixed as so-called "static" IP
addresses, but assigned to the Internet user only for
the duration of each access to the Internet as a
dynamic IP addresses. About the owner of the port
that was used from which a particular dynamic IP
address at a particular time is, therefore, only
information to be given if the traffic can be analyzed,
which give information about which port the relevant
IP address to material time, was assigned. This
allows § 113b set a sentence for the two TKG TKG
data stored in accordance with § 113a.
45
According to the predominant view allowed traffic to
supply information about the holder of dynamic IP
addresses to § 113 paragraph 1 TKG be used even
before the entry into force of § § 113a and 113b TKG
(see, for instance LG Stuttgart, decision of January 4,
2005 - 13 Qs 89/04 - NJW 2005, p. 614 <614 f.>; LG
Hamburg, decision of 23 June 2005-1 Qs 43/05 -,
MMR 2005, p. 711 <712 f.>; Sankol, MMR 2006, p.
361 <365>; aA LG Bonn, Decision of 21 May 2004-31
Qs 65/04 - DuD 2004, p. 628 <628 f.>; OLG
Karlsruhe, Judgement of December 4, 2008 - 86/07 4
U -, MMR 2009, p. 412 <413 f.>; bear, Handbook on
Computer Evidence, 2007, p. 148, para. 212; Bock,
in: Geppert / Piepenbrock / contactor / Schuster, Beck
'scher comment to TKG, 3rd edition 2006, § 113 para.
23 f.). we could use it only on in accordance with § 96
TKG stored traffic data. The possibility of an
identification of the holder of a dynamic IP address
via an information pursuant to § 113 paragraph 1
TKG was therefore dependent on whether such data
were stored on the date the request for information
yet.
46
Important is the identification of the holder of IP
addresses as the copyright notice. If management
and rights holders to record the IP addresses where
copyright violations are committed in the Internet, the
law enforcement authorities through information
requests under § 113 paragraph 1 TKG determine the
respective subscriber to against the can do the rights
holders for access to the criminal files then civil law.
While conceding § 101 paragraph 2 sentence 1 No. 3
of the Copyright Act ("the Copyright Act) as amended
by Article 6 of Law No. 10 for improving the
enforcement of intellectual property rights of 7 July
2008 (BGBl I S. 1191) under their copyright injured
now, under certain conditions, a civil right to
information to the telecommunications services
providers one. This may provide this information to
the Copyright Act § 101 paragraph 9 on the basis of a
court order under use of telecommunications traffic
data. However, this is a return to the stored data
according to § 113a TKG excluded (see OLG
Frankfurt am Main, Decision of 12 May 2009 - 11 W
21/09 -, MMR 2009, p. 542 <544 with further
references; Listen, NJW 2008, p. 3099 <3101>;
Baker, in: Rensen / Brink, lines of the Federal
Constitutional Court, 2009, p. 99 <111f>, footnote
49).
7
47
Information under § 113 para 1 sentence 1 of the
TKG are given to the extent necessary for the
prosecution of crimes or misdemeanors, to respond
to threats to public security or public order or for the
performance of intelligence tasks.
48
cc) § 113b Telecommunications Act provides:
49
§ 113b
50
Using the stored data according to § 113a
51
The party liable under § 113a must solely
on the basis of the storage obligation in
accordance with § 113a stored data
52
1st to prosecute crimes,
53
2nd to repel serious threats to public safety
or
54
3rd to fulfill the statutory duties of the
constitutional authorities of the Federal and
State Governments, the Federal
Intelligence Service and the Military
Intelligence
55
submit to competent authorities at their
request, to the extent provided in the
respective statutory provisions with
reference to § 113a and the transmission is
arranged in a particular case, for any
purpose other than an exchange of
information under § 113, it may not use the
data. § 113 para 1 sentence 4 shall apply
accordingly.
56
The § 113b of the Act in relation taken control of the
Telecommunications Act § 113 provides in relevant
part:
57
§ 113
58
Information Procedure Manual
59
(A) a person providing telecommunications
services or business-it participates, has in
each case to the competent authorities
 shall promptly at its request information on
the charges under § § 95 and 111 data, as
necessary for the prosecution of crimes or
misdemeanors, to respond to threats to
public safety or order or to fulfill the
statutory duties of the constitutional
authorities of the Federal and State
Governments, the Federal Intelligence
Service or the Military is required.
Information on data by which to access
devices or in this or in the network set up
storage facilities will be protected,
particularly PIN or PUK, has a sentence to
the obligor pursuant to a request for
information under § 161 para 1 sentence 1,
§ 163 para 1 Code of Criminal Procedure,
the data collection requirements of the
police laws of the Federal or State
Governments to prevent threats to public
safety or order, § 8 paragraph 1 of the
federal constitution protection law, the
relevant provisions of the country's
Constitution Act, § 2 paragraph 1 of the
Federal Intelligence Service Act or § 4 Abs
may be given. 1 of the MAD-law, to other
public or private bodies such data can not
be transmitted. An access to data that are
subject to the secrecy of
telecommunications is allowed only under
the conditions of the relevant statutory
provisions therefor. Providing information
about the debtor has to maintain its
customers and third parties confidential.
60
(2) ...
61
c) § 100g para 1 sentence 1 Code of Criminal
Procedure governs the collection of
telecommunications traffic data for law enforcement
purposes. Law enforcement authorities may then first,
as stipulated in § 100g StPO aF access to traffic,
which have saved the telecommunications companies
on the basis of § 96 of the Act. In addition, Code of
Criminal Procedure § 100g now permits the collection
of the Telecommunications Act § 113a to the data
stored as a precaution. Against this target of the
constitutional process in a BvR 263/08 and 586/08
BvR 1.
62
Specifically, § 100g allowed para 1 sentence 1 §
113a Code of Criminal Procedure, referring to the Act
the law enforcement authorities without the
knowledge of the person concerned to bring traffic to
the extent necessary for the investigation of the facts
or the determination of the whereabouts of the
suspect is. This is true only when certain facts justify
the suspicion that someone as perpetrators or
participants in a crime described in the case of
8
considerable importance, especially one in § 100a
para 2 Code of Criminal Procedure offense,
committed or has attempted to commit a crime
prepared or that someone has as perpetrators or
participants of a crime committed by means of
telecommunications.
63
The data collection may under § 100g para 2
sentence 1 in conjunction with § 100b paragraph 1
sentence 1 and 2, Code of Criminal Procedure except
in the case of imminent danger only be ordered by
the judge. The arrangement may be directed in
accordance with § 100g para 2 sentence 1 in
conjunction with § 100a para 3 Code of Criminal
Procedure only against the defendant, or against
persons who are deemed required by certain facts is
that they are intended for the accused arising from it
or receive messages or pass, or that the suspect
used her connection.
64
For crimes committed by means of
telecommunications traffic data collection according
to § 100g paragraph 1, sentence 3 Code of Criminal
Procedure only if the investigation of the facts or the
determination of the whereabouts of the suspect by
other means would be futile and the collection of data
in proportion to the importance of the matter stands.
This limitation was the legislature on the grounds of
proportionality to be necessary because the traffic
data collection was donated by the storage
requirement of § 113a TKG related expansion of the
data volume to total intensity of intervention (see
Bundestag document 16/5846, p. 52).
65
Of the measures pursuant to § 100g para 1 sentence
1 of the Code of Criminal Procedure concerned in
accordance with § 101 paragraph 4 sentence 1 Code
of Criminal Procedure must be informed. Their judicial
review, he may apply within two weeks after the
notification (§ 101 paragraph 7 sentence 2 Code of
Criminal Procedure). In certain cases, a notification
can be omitted (§ 101 para 4 Code of Criminal
Procedure), in other cases they may be postponed (§
101 para 5 Code of Criminal Procedure). A long-term
deferral under § 101 paragraph 5 Code of Criminal
Procedure requires different from the waiver of notice
pursuant to § 101 paragraph 4 of the Code of
Criminal Procedure by a court.
66
§ 100g Code of Criminal Procedure provides:
67
§ 100g
68
(1) certain facts justifying the suspicion that
someone as perpetrators or participants

69
1st has a crime in the case of considerable
importance, especially one in § 100a para 2
shall offense committed, commit, in cases
where the attempt is punishable, has
attempted or prepared by an act or
70
2nd an offense committed by means of
telecommunications,
71
Sun may be applicable) without knowledge
of the affected traffic (§ 96 para 1, § 113a
of the Telecommunications Act to the
extent necessary for the investigation of the
facts or the determination of the
whereabouts of the suspect is. In the case
of sentence 1, No. 2, the measure is only
permitted if the investigation of the facts or
the determination of the whereabouts of the
suspect in any other way would be futile
and the collection of data in proportion to
the significance of the matter is. The
collection of location data in real time is
only in the case of sentence 1, no one
allowed.
72
(2) § 100a para 3 and § 100b para 1-4
sentence 1 shall apply accordingly.
Notwithstanding § 100b para 2 sentence 2
No. 2 in the case is enough of a crime of
considerable importance, a spatially and
temporally sufficiently definite identification
of telecommunications, if the investigation
of the facts or the determination of the
whereabouts of the accused would be
difficult otherwise useless or substantially .
73
(3) If not, the collection of traffic in
telecommunications services provider, it is
determined after the completion of the
communication to the general regulations.
74
(4) On measures referred to in paragraph 1
shall be prepared according to § 100b para
5 of each year a table specified in the are:
75
1st the number of procedures in which
measures referred to in paragraph 1 have
been carried out;
76
2nd the number of arrangements of
measures taken under paragraph 1,
9
distinguishing between initial and extension
orders;
77
3rd each underlying cause offense,
distinguished by paragraph 1 sentence 1
No. 1 and 2;
78
4th the number of past months, were
queried for the traffic data under paragraph
1, calculated from the date of the
arrangement;
79
5th the number of measures to be
unsuccessful because the requested data
were not available in whole or in part.
80
2nd Directive 2006/24/EC of the European Parliament
and Council, the implementation of the challenged
regulations as they relate to law enforcement, serve,
was adopted by the Council on the basis of Article 95
voting against Ireland and Slovakia (see Council
document 6598/06 ADD 1 of 27 February 2006, p. 4),
after the European Parliament one submitted by
France, Ireland, Sweden and the UK draft on Article
31 paragraph 1 letter c, and Article 34 paragraph 2,
point rejected b TEU - in the entry into force of the
Treaty of Lisbon, as amended (hereinafter: TEU aF) -
supported the Framework Decision on the retention of
telecommunications data (see Council document
8958/04 of 28 April 2004) had (see parliamentary
document P 6 TA [2005] 0348).
81
a) The Directive builds on the fact that
telecommunications traffic data are a valuable tool in
the prosecution of criminal offenses, particularly in the
areas of organized crime and terrorism (which points
70-10 of Directive 2006/24/EC) and that some
Member States rules on have adopted the retention
of such data, which differed greatly from each other
(see recital 5 of Directive 2006/24/EC). The fact
established legal and technical differences affect the
internal market for electronic telecommunications,
because providers of telecommunications services
with different requirements for the data to be stored
and the storage time were facing (see Recital 6 of
Directive 2006/24/EC).
82
b) The validity of Directive 2006/24/EC is both in
terms of their compatibility with Community
fundamental rights (see Klesczewski, in: Festschrift
for Gerhard Fezer 70th birthday, 2008, p. 19 <24
and>; Klug / Mature, RDV 2008, p. 89 <91 et seq;
Rusteberg, VBlBW 2007, p. 171 <176>; Westphal,
EuZW 2006, p. 555 <558 f.>; Zoeller, GA, 2007, p.
393 <410 ff >; Advocate General Kokott, Advocate,
18 July 2007 - Case C-275/06 - ECR 2008, I-271
<276>, para. 82 - Promusicae -) and in relation to the
unused basis of competence European Community
called into question (see grid / Schnabel, MMR 2007,
p. 411 <412 f.>; Jenny, CR 2008, p. 282 <285>;
Klesczewski, in: Festschrift for Gerhard Fezer 70th
birthday, 2008 , p. 19 <22 et seq; Klug / Mature, RDV
2008, p. 89 <91>; Leutheusser-Schnarrenberger,
ZRP 2007, p. 9 <11 et seq; Rusteberg, VBlBW 2007,
p. 171 <173 f.>; Westphal, EuZW 2006, p. 555 <557
f.>; Zoeller, GA, 2007, p. 393 <407 et seq).
83
With Judgement of 10 February 2009, the Court
dismissed an action for annulment by Ireland under
Article 230 EC Treaty (see ECJ, Judgement of 10
February 2009 - Case C-301/06 -), based on the fact
that the dominant purpose of the directive to facilitate
the prosecution of criminal offenses and was
therefore a legal basis, only the unanimity of the EU
Treaty rules presuppose old version on police and
judicial cooperation, in particular Article 30, Article 31
paragraph 1 letter c, and Article 34 paragraph 2, point
b EUV aF into account (see action came on 6 July
2006 - Case C-301/06 - OJ C 237 of 30 September
2006, p. 5). Here, the Court held expressly clear that
the decision does not have a possible violation of
Community fundamental rights as their object (see
ECJ, Judgement of 10 February 2009 - Case C-
301/06 -, para. 57).
84
c) According to Article 1 paragraph 1 Directive
2006/24/EC, Directive aims to harmonize national
rules on the obligations of providers of publicly
available electronic communications services or of a
public telecommunications network for the retention
of telecommunications data to ensure that the Data
for the purpose of the investigation, detection and
prosecution of serious crime, as defined by each
Member State in its national law, are available. On
adoption of the Directive, the Council to the Member
States had to define the term "serious crime" in
Article 2 paragraph 2 of the Framework Decision on
the European arrest warrant and surrender
procedures between Member States (2002/584/JHA )
of 13 June 2002 (OJ L 190 of 18 July 2002, p. 1)
referred to crime and crimes involving the use of
telecommunications facilities to consider appropriate
(see Council document 6598/06 ADD 1, p. 4). The
use of the data sets for a security role of the
intelligence or not the policy.
85
Under Article 3 para 1 Directive 2006/24/EC requires
Member States to ensure that stored in Article 5 of
Directive 2006/24/EC on data in a listed stock, which
under Article 6 Directive 2006 / 24/EG a period of at
least six months and a maximum of two years from
the date of the communication to be established.
Under Article 4 Directive 2006/24/EC Member States
10
must ensure that the stored data be disclosed only in
certain cases and in accordance with national law to
the competent national authorities. Each Member
State shall determine the method and thereby the
conditions for access to data in accordance with the
requirements of necessity and proportionality must be
observed.
86
Article 7 of Directive 2006/24/EC requires Member
States to ensure compliance in regard to any data to
be retained with certain minimum standards of data
security. In addition, the rules remain the Directives
95/46/EC and 2002/58/EC applicable (see recitals 15
and 16 of Directive 2006/24/EC). ensure, under
Article 8 Directive 2006/24/EC, Member States that
the stored data and all other necessary information
can be forwarded immediately on request to the
competent authorities. Under Article 13 of Directive
2006/24/EC, Member States shall also ensure that
measures to implement the provisions of Chapter III
of Directive 95/46/EC providing for judicial remedies,
liability and sanctions in view of the data under the
Directive 2006 / 24/EG be fully implemented. No
regulation shall adopt the policy as to who should
bear the cost of data storage.
87
3rd § 100g Code of Criminal Procedure has also for
the Council of Europe Convention on Cybercrime
(Federal Law Gazette II p. 1242, hereinafter the
Convention on Cybercrime) importance (see
Bundestag document 16/5846, p. 27 f. and 50). The
Convention requires not only the creation of
substantive criminal law to combat computer crime,
but also to certain Procedural law rules. In particular,
under Article 16 of the Convention, the competent
authorities authorized to order the immediate backup
of traffic. Persons in whose control are such data
shall be obliged to secure the short term and intact, to
allow competent authorities to obtain their transfer
(using the Quick Freezing). A similar provision was
unnecessary for the legislature, however, because
the data is kept frozen because of the comprehensive
data provided for in § 113a TKG already drawn up
(see Bundestag document 16/5846, p. 53).
88
4th At the request of the complainant in the
proceedings a BvR 256/08, the Constitutional Court
by order of 11 March 2008 adopted an interim
measure, could be after the § 113b sentence 1 No. 1
TKG restricted to the merits of the case only applied
(see BVerfGE 121, 1). By order of 28 October 2008 it
has extended that order so that could also be made
by § 113b sentence 1 No 2 and 3 of the Act to the
main decision only with restrictions for use (see
BVerfGE 122, 120). In addition, the federal
government was ordered to report to each for
successive periods of several months on the practical
implications of the Act provided in § 113a of the data
storage and interim measures for the prosecution.
The federal government is that for the periods 1 May
2008 to 31 July 2008, from 1 August 2008 to 1 March
2009 and 1 March 2009 to 1 September 2009
complied with.
II
89
1st The complainant in the proceedings a BvR 256/08
dispute the § § 113a and 113b the Act. They allege
the violation of Article 10, Section 1, Article 12,
Section 1, Article 14, Section 1, Article 5 paragraph 1
and Article 3 paragraph 1 GG. Which have joined with
the same arguments in the reference number 1 BvR
508/08 proceedings conducted about 34,000 other
complainants.
90
a) The constitutional complaints are admissible.
91
aa) The complainant, a) to 3) and 5) to 8) used as
academics, lawyers, managers, accountants and
chartered accountants and investigative journalists
working in private and business various
telecommunications services such as fixed line,
mobile, Internet services and e-mail accounts . It is
not reasonable for them to complain first before the
competent courts against the telecommunications
companies.
92
The complainant on four developing) and sells the
software for a commercial Internet anonymity service.
The service will be provided in conjunction with other
independent operators, will use its software on its
servers. It also operates the complainant himself a
publicly accessible server anonymization. The
anonymity service is provided as a result of the
challenged norms no longer economical. Her
threatened the loss of their customers, because
customers because of the retention could no longer
trust to remain anonymous. In fact, the storage
requirement a profession coming. The storage
requirement it concerns itself, present and immediate,
because it can not be expected to deal with that by
ignoring the risk of fines or criminal penalties.
93
bb) The admissibility of constitutional complaints is
not contradicted, that the contested rules
implementing the Directive 2006/24/EC. The federal
legislature is incompatible with the Directive
2006/24/EC, where the stored data according to §
113a Telecommunications Act should not only be
used for serious crimes, but also security and to carry
out intelligence tasks.
11
94
The Federal Republic of Germany was also not
obliged to implement Directive 2006/24/EC. This is
contrary to Article 95 and against community rights. It
violates the right to respect for private life and
correspondence under Article 8 ECHR and leads to a
disproportionate interference with guaranteed by
Article 10 ECHR the freedom of expression. The
Directive should therefore not be used in Germany. At
least the constitutional complaint was therefore
admissible, because the challenged norms for an
annulment by the European Court of Justice for a
preliminary ruling under Article 234 EC Treaty (now
Article 267 TFEU), whose implementation is sought is
considered in its entirety based on the fundamental
rights of the Basic Law could be. Keep the Court
Directive 2006/24/EC not to be invalid, the Federal
Constitutional Court to declare them as
kompetenzwidrig inapplicable and the challenged § §
113a and 113b TKG be discarded.
95
b) The constitutional complaints were well founded. If
it were a storage of data on stocks, which is
unconstitutional. It was now possible to determine all
the communication partner of a person in the last six
months. The storage of radio cells, will allow the
phone in their area, virtually uninterrupted motion
profiles. The storage of the IP address it allows the
future to track the internet usage of the past six
months. It states that does not appear that the
retention of an effect measurable clearance rate, or
crime rates.
96
aa) The challenged provisions violate Article 10
paragraph 1 GG. Stored fell within the scope of the
telecommunications secrecy. The Internet fall under
Article 10 paragraph 1 GG in that connection, it would
be if used as a medium of mass communication. The
with § § 113a, 113b TKG reasonable interference
with the secrecy of telecommunications is not
justified.
97
(A) Ensuring a proper criminal justice can not justify
the retention. In the area of cyber-crime issue in the
first place to assets. As far as telecommunications
funds are used only as an aid in the commission of
conventional crime, legal protection of all types were
affected. The suitability of data retention to combat
organized crime or the prevention of terrorist attacks
was assessed as very low.
98
General preventive effects of retention are not
expected to seriously. In the field of law enforcement
only decided milder powers of intervention are
appropriate than in the defense against specific
threats. Data that were obtained to prevent threats to
the highest legal protection should not be used to
prosecute minor offenses. A secondary use is
acceptable only if the collection of data and to the
purpose for which details are given of secondary use,
is proportionate. Which is not taken into account.
Advanced investigative powers of law enforcement
authorities could increase the clearance rate at best
minimal. Whether this would lead to a reduction in the
crime rate is extremely questionable.
99
The suitability of the retention of legal protection is
questionable. Although it prevents that
communication processes are not allowed to
understand why, because their circumstances are not
saved. However, it is unclear how much demand
there is to supply data. In any case, a variety of
communications data for billing purposes and
evidence will stored for up to six months. Criminal
groups took advantage of opportunities the other
hand, anonymous prepaid plans such as
telecommunications or Internet cafes.
100
(2) As compared to the less restrictive measure
retention get the quick-freezing process into
consideration, which concerned the protection of all
stored traffic still a person. In very exceptional cases
is the arrangement of the storage of all available
traffic data at a specific time possible (Global
Freezing).
101
(3) The severity of the procedure in Article 10
paragraph 1 GG derives from the fact that all persons
are affected, the telecommunications services to the
public would take to complete. The storage
successes without suspicion. The mere possibility
that data may be needed for purposes of law
enforcement or security does not justify the
intervention. The data retention enables the creation
of telecommunications and motion profiles and have
a great spread. This is all the more weighty than
telecommunications taking place in the expectation of
complete confidentiality.
102
A generalized, overall supervision in the form of a
comprehensive coverage of telecommunications
links, as it represents the retention is, even to defend
the greatest dangers unconstitutional. The probability
that the stored data would be needed later to security
or law enforcement purposes, be negligible and could
not justify such a serious intervention. The data
retention enables personality images with an
unprecedented accuracy. The communication of
content data are extremely meaningful. Access to the
circumstances of the telecommunications weigh no
less difficult than that on the communication content.
It enables comprehensive personal and behavioral
profiles. Traffic data provided a wealth of information
on social relations.
12
103
Data retention also increases the risk of wrongly
identifying measures to be suspended or unjustly
condemned, and the risk of data abuse. Traffic could
be selectively used against unpopular persons and
were suitable for the control of individuals and groups
as well as for industrial espionage. Only the waiver of
effectively protect data from misuse.
104
The data retention would undermine the impartiality
essential to democracy of communication. The
protection of human dignity requires a degree of
unobserved communications, particularly in the
context of special relationships of trust. The damage
that arises through the monitoring of the citizen,
would not offset by the resulting gain in efficiency.
Data retention has reduced the development of
countermeasures and could ultimately result in the
amount of available data even telecommunications.
Other hand, the increasing digitization of the
decrease of the stored traffic data for billing purposes
the same even without the retention of more than.
105
This is disproportionate, because the expected
benefit in a significant imbalance to their
disadvantage for the individuals concerned and
society as a whole stand. The objects of legal
protection is improved only in few cases. With a
reduction of crime levels is not likely. In view of the
importance of other personal data for law
enforcement threatens a dam break.
106
bb) The contested legislation was also contrary to
Article 12 paragraph 1 GG. , § § 113a and 113b TKG
accessed disproportionately into the professional
freedom of commercial providers of
telecommunications services and the professional
freedom of nationals of confidence professions.
107
So it affects the relationship of trust between lawyer
and client, where it can be revealed by analysis of
telecommunications traffic, the attorney-client
relationship. The retention of the frighten
telecommunicative contact with specialized
consultants, because it far-reaching conclusions on
the health and mental status, religion or financial
circumstances could be drawn. Journalists threatened
with the loss of informers. This negative effect
prevails over any measurable public interest. Given
the small number of cases in which it depended on
communication by and with professional secrets, the
needs of Legal protection are guaranteed without
data retention.
108
As regards the retention of the service violates the
proportionality requirement. A scheme under which
the consequent investment to be repaid does not
exist. In the absence of adequate compensation
arrangements on cost management, processing and
transmission of inventory data to the competent
authorities, the telecommunications company had
Inpflichtnahme but unreasonable. Without adequate
compensation to them should the performance of
duties of law enforcement and security functions to be
saddled with a core of the state.
109
cc) Unless previously used facilities by
telecommunications service providers as a result of
data retention could no longer be used, accessed, § §
113a and 113b TKG also enteignungsähnlich in the
property guarantee of Article 14 paragraph 1
sentence 1 GG. This is not compatible without
adequate compensation with Article 14 paragraph 1
GG.
110
dd) § § 113a and 113b TKG also contrary to Article 5
paragraph 1 GG. They violated the freedom of
expression, information and broadcasting freedom.
The more expensive the telecommunications data
retention. This force less financially citizens,
businesses and organizations to restrictions. In
addition, providers and users would be deterred from
staatskritischen particular information. The impact of
information stand here does not preclude that not
referring websites because of § 113a
Telecommunications Act should be saved. Provider of
Telemedia saved often in violation of the Telemedia
Act, the IP addresses of users. Then the public
authorities had to § 15 paragraph 5, sentence 4 in
conjunction with § 14 para 2 TMG access.
Expression, information and broadcasting are
constitutive of a liberal democracy. In view of the
effect on overall social information and its only limited
value in the retention grab a disproportionate Article 5
paragraph 1 GG.
111
ee) § § 113a and 113b TKG eventually hurt the
general principle of equality under Article 3 paragraph
1 GG in several respects.
112
This applies first of all, as far as successes only for
the exchange of information via telecommunications
networks, but not for the spatial-direct exchange of
information, storage of communications data. Given
the high intensity of intervention data retention that
differentiation is not particularly justified since in the
field of spatial-direct communication often would find
other evidence.
113
13
It also violates Article 3 para 1 Basic Law that,
although the use of recorded information services on
the Internet, but not that of traditional mass media
such as magazines, books and television. That mass
communication is particularly of injurious on
telecommunications networks, there is no conclusive
evidence. An unjustified difference in treatment is
also that the retention does not cover non
telecommunicative covers computer use. Similarly,
Article 3 para 1 Basic Law is violated because the
legislature had not justified apart from the choice of
milder agents such as technical, structural and
enlightened preventive measures or the quick-
freezing method.
114
Nor were the difference in treatment between the
telecommunications as electronic information and the
postal system embodied as a detached exchange
information, the unequal treatment of
telecommunications undertakings compared with
postal companies, the unequal treatment of the use of
telecommunications services to access to other
services and the unequal treatment of
telecommunications companies over other companies
such as banks and airlines constitutionally justified.
115
Also violates the equal treatment of small
telecommunications companies to the general
principle of equality, because this was a group of
typical cases without sufficient cause be charged
much more.
116
not be justified before Article 3 paragraph 1 GG
finally, the enslavement of private
telecommunications companies without
compensation for public purposes. The criteria for the
admissibility of a special levy to finance function are
not met. The prevention of threats and the
punishment of crime are the general tasks that need
to be funded from general taxation and not the
companies concerned and their customers are likely
to be imposed.
117
2nd The complainant in the proceedings a BvR
263/08 contact except against § § 113a and 113b
against TKG § 100g Code of Criminal Procedure,
insofar as it relates to the collection of stored data in
accordance with § 113a TKG. They allege a violation
of Article 1, Section 1, Article 2 para 1 in conjunction
with Article 1, Section 1, Article 10 paragraph 1 and
Article 19 paragraph 2 GG.
118
a) The constitutional complaints are admissible.
119
aa) The complainants are lawyers, a university
professor, a journalist, a former president
Finanzgericht, a student and member of the German
Bundestag, or Parliament of a country. The
complainant to 3) is now Minister of Justice.
120
Each of them take multiple providers to complete.
They used private, freelance or their political activities
fixed line, mobile, Internet access and e-mail
accounts and are therefore affected by the retention
of telecommunications data.
121
bb) That the retention successes even by the private
sector was open to the admissibility of constitutional
complaints against not. For they will immediately
ordered by the statutory scheme of § § 113a and
113b the Act.
122
cc) It is not reasonable for the complainants, pursuing
the filing of constitutional complaints in each case the
ordinary courts.
123
dd) The constitutional complaints are certainly
allowed, unless the legislature in the implementation
of Directive 2006/24/EC is contrary to national
constitutional law, although the remainder of his travel
permit implementation of its attention, or if it went
beyond the rules prescribed in the directive. This is
regarding storage purposes, the use of the data
justifying crimes, the elimination of precise rules and
procedures of the agencies verwendungsberechtigten
the case.
124
ee) In addition to Directive 2006/24/EC is ultra vires
and could in Germany, which has no legal effect. Also
decide whether an act of the European Community is
contrary to Article 1 GG, and could therefore claim in
the domestic law does not apply solely by the Federal
Constitutional Court. A submission to the European
Court is not initiated. Insofar as the Federal
Constitutional Court is not entitled to consider, decide
on the validity of Directive 2006/24/EC itself, a
submission to the European Court is being
stimulated. The Directive 2006/24/EC was adopted
without any legal basis and with Community
fundamental rights, in particular Article 8 ECHR,
incompatible.
125b) The constitutional complaints were well
founded.
126
aa) Directive 2006/24/EC is invalid. It was adopted on
the basis of Article 95, although not the establishment
or functioning of the subject have, but measures of
14
police and judicial cooperation in terms of Article 29
et seq TEU aF
127
bb) The retention under § § 113a and 113b the Act
infringes on human dignity. In a free society should
not everyone who use a means of communication as
a potential criminals or troublemakers are treated.
give a free society without trust in a confidential
communication is not there. There must be a core
area of personal life be left in which the individual is
free from government monitoring, control or influence.
With the retention of state erect an infrastructure to
destroy the confidence of citizens in a free
communication and can enable further monitoring in
future. This is contrary to human dignity and the
principles of constitutional democracy.
128
cc) § § 113a and 113b TKG disproportionately
attacked in the right one to informational self-
determination under Article 2 para 1 in conjunction
with Article 1 paragraph 1 GG.
129
The data provided for in § 113a TKG verdachtslos
successes and, in general. The data made it possible
to create personality profiles. The stay of the user of a
mobile phone let the evolution over the last six
months. There is no provision for the cancellation of
the core of the private life of data concerning a hit.
The providers are not required to document the
transfer and that the transmitted data to be marked.
130
TKG § 113b does not satisfy the principle of certainty.
Use only as a flat rate of prosecution of criminal
defense serious threats to public safety and the
performance of intelligence tasks are mentioned. It is
not enough that the further specification of the
intervention in order to access the respective
fachrechtlichen standards successes. For the
fundamental intervention successes already with the
storage of the data. According to the requirement of
clarity, the storage must be determined precisely
purpose. Because the countries are solely
responsible for the access arrangements, the use of
the data is completely overwhelming.
131
The surgery stand in view of its gravity in proportion
to the recoverable value. Data retention let not expect
a significant gain for the fight against crime.
132
dd) The contested provisions also violate the secrecy
of telecommunications under Article 10 of the Basic
Law in its essential content.
133
ee) Decision latitude, which would leave the Directive
2006/24/EC, are not filled in the Constitution. § 113b
TKG go beyond the objective of the directive, if the
stored data would be provided to all intelligence
purposes. § 100g Code of Criminal Procedure defines
the range of offenses that could justify the retrieval of
stored data, not clear. It remains open when an
offense is also in the case of considerable
importance. In contrast, it in fact - unless you
consider relevant Community law at all - in fact and is
standard for any future power separately to clarify
whether their purpose was defined by European law
mandatory and whether it reflects a national
constitutional law. § 100g Code of Criminal Procedure
leaves the retrieval of traffic data for each offense
committed by means of telecommunication to go so
far and repel the purpose of the directive, "terrorist
offenses.
134
3rd The complainant in the proceedings a BvR
586/08 dispute the § § 113a and 113b and TKG §
100g Code of Criminal Procedure. They allege the
violation of Article 10 paragraph 1 and Article 2 para 1
in conjunction with Article 1 paragraph 1 GG.
135
a) The constitutional complaints are admissible. The
complainants - Members of the German Parliament
and members of the group of Alliance 90/The Greens,
who are also part-time as a lawyer or doctor were
active - even, direct and present in their right under
Article 10 paragraph 1 GG, and their right to
informational self-involved.
136
Nor can the scheme, as the Directive 2006/24/EC
leave considerable scope for implementation, are
reviewed extensively by the German fundamental
rights. defined types are mandatory, only the data to
store categories and, with the minimum storage
period of six months. Implementation scope existed
regarding the storage and uses the access-points, the
access conditions and procedures for the allocation
and data security requirements. Where Member
States provide that, in the limits of Article 15 para 1
Directive 2002/58/EC to the security and the
fulfillment of the tasks of the intelligence services use
other than law enforcement, they were subject to full
constitutional scrutiny. The determination of serious
crimes for prosecution, the retention successes lie in
the hands of the Member States. Article 7 of Directive
2006/24/EC lays down minimum requirements, the
more extensive data protection requirements in the
national constitutional law is not blocked. Finally, the
financing of the retention in the Directive is not
regulated.
137
A complete examination of the constitutional
provisions on data retention is also possible if the
15
Directive 2006/24/EC is invalid, the Court finds the
invalidity of the policy or if a review of the
competence of the European Community to adopt the
directive by the Federal Constitutional Court,
exceptionally even am considering. A valid template
can be based on a particular violation of Community
fundamental rights.
138
b) The constitutional complaints were well founded.
The challenged provisions violated Article 10
paragraph 1 GG. This protects the confidentiality of
the circumstances of the communication process. In
its scope of protection therefore fell under § 113a
para 2 TKG to memorized telephone traffic data and
according to § 113a para 3 and 4 of the Act to save e-
mail traffic and Internet data. The fact that the Internet
and mass communication takes place, the traditional
freedom of broadcasting had been allocated to that
State does not. That individual communication could
be conveyed is sufficient, to trigger the protection of
fundamental rights.
139
The regulations on data retention intervened in the
scope of protection of Article 10 GG. The state
intervention will begin with the traffic data storage
requirement of § 113a Act. He'll continue with the
approved in § 113b TKG transmission of traffic data
to government authorities. Other acts of interference
were the evaluation and use of data by the authorities
receive information and the transfer of data to other
authorities or private.
140
Sufficiently is intended § 100g paragraph 1 No. 1
Code of Criminal Procedure, as it has in crime in the
case of major importance and concretizing the 100a
in para 2 Code of Criminal Procedure § offenses
described refers. Critical to assess whether § 100g, 1
No. 2 Code of Criminal Procedure with regard to §
100g para 1 sentence 2 of Criminal Procedure. When
the data collection stand in proportion to the
importance of the matter, except for citizens not
identified with the necessary clarity. The problem is
the determination of § 113b Act. In the area of
security and intelligence was not foreseeable, are
likely to access the extent to which enforcement
agencies to supply data.
141
Data retention also contrary to the principle of
proportionality. Effective law enforcement is indeed a
legitimate purpose. Also might the suitability and
necessity of data retention does not deny. The Quick-
freezing procedure was not equally well suited,
because it was irrelevant, if not traffic or no longer in
existence. Data retention is, however inappropriate.
Traffic could be significant conclusions about the
communication or movement behavior. Because of
their automatic analyzability they are for computer
surveillance methods and strategic monitoring by the
intelligence services are particularly suitable. They
provided investigative leads and allowed the social,
political or economic relationship networks to
reconstruct. Comprehensive personality profiles could
be created. Particularly distressing factors were the
Verdachtslosigkeit of storage and their extraordinary
spread. Account will also be the effect on overall
social behavior and the democratic discourse and
Missbrauchsbefürchtungen.
142
§ 100g StPO go about implementing Directive
2006/24/EC beyond what is necessary, because the
retrieval of the stored data according to § 113a TKG
can generally also be due to criminal activities
committed by means of telecommunication. Already a
mean of crime for access to the data store. These
systems increase the risk of being exposed to
unwarranted suspicion and thus the object of
investigation measures to be onerous. The data
collection was made in secret. § 100g para 2 in
connection with § 100b and § 101 Code of Criminal
Procedure grant only a posteriori, weakened by a
restrictive practice receive legal protection. The
effectiveness of the judges of title was controversial.
The existing access facilities are usually been
sufficient. In consideration of alternative investigative
methods such as the quick-freezing procedure falls
the adequacy assessment is negative.
143
§ 113b sentence 1 No. 2 TKG opens up access to
data stored anlasslos already substantial danger to
public safety. Intelligence surveillance activities
carried out in advance of specific threats at
significantly reduced remedies. give restrictions on
the interception of Members not. Given their
Vorwirkungen on the behavior of citizens and the
democratic discourse, the rules were unreasonable in
§ 113b sentence 1 No 2 and 3 of the Act.
144
Professional secrets are not protected separately.
Especially prejudicial in this act to physicians and
operating exclusively as a criminal defense attorneys
from. It also lacked sufficient data structure
requirements for service providers. This entails
considerable risks of abuse. Even less appropriate is
the use of data by private enforcement of civil claims,
as it permits a sentence of § 113b clause 2 the Act.
As could be determined in this way only the owner of
connections by the subscriber does not necessarily
agree with the Internet users, whether in pursuit of a
much larger range of onlookers expected.
145
The obligations under § 113a para 10 TKG to follow
in the telecommunications sector due diligence and
through technical and organizational measures to
ensure that the data are accessible only by specially
16
authorized persons would not further concretized.
The data will not be sufficiently guaranteed. The
weight of the intervention is not counterbalanced by
its value. Particularly in the case of organized crime
and terrorism, he was the least, since refusing to pay
the perpetrator the power to subvert the storage,
which is easily possible. The effects of storage on
democratic discourse and the dangers of data
breaches could not be sufficiently reduced by limiting
the uses.
III.
146
The constitutional complaints to the Federal
Government, the Federal Administrative Court, the
Bundesgerichtshof, the Federal Commissioner for
Data Protection and Freedom of Information and Data
Protection on behalf of the countries have taken the
Berlin Commissioner for Data Protection and
Freedom of Information status.
147
1st The federal government holds the constitutional
complaints inadmissible in part, in any event,
unfounded.
148
a) the constitutional complaints are inadmissible if
they were directed solely against the § § 113a and
113b the Act.
149
aa) The subject of the verification of competence of
the Constitutional Court, provided they comply with
the mandatory requirements of the Directive
2006/24/EC. As far as regulatory scope existed, the
federal law based its implementation as provided for
in Directive 2006/24/EC regulatory minimum. An
erupting Act lies against not because it's not about
the division of powers between the European
Community and the Member States, but go only to
those within the European Union. At European level,
finally, there is sufficient protection of fundamental
rights. A violation of human dignity is also not
apparent.
150
bb) The complainants were not given the primacy of
Community law beschwerdebefugt. § 113b sentence
1 No. 1 Telecommunications Act and § 100g Code of
Criminal Procedure did not go beyond the limits of the
Directive 2006/24/EC storage purpose. In the
definition of serious crimes are also considered
appropriate means of telecommunication facilities
committed crimes. Directive 2006/24/EC to let the
extension of the storage order to use the security and
intelligence performance of work. § 113b sentence 1
No 2 and 3 of the Act in so far contains only one other
legal use provision. This was however not alone in
the constitutional process rügefähig because they
affect fundamental rights no matter who goes on by
Directive 2006/24/EC even arranged complaints.
Additional complaints could only result from power
standards, approved to continue the use of stored
data. TKG § 113b does not contain such provisions.
There regulated purposes rather restricted one, only
the potential data uses. , § § 113a and 113b TKG had
no further berufsregelnde trend in the occupations
pursued by the complainants as a lawyer or a
journalist. Article 14 of the Basic Law is not affected.
The storage requirement not shorten a right to
dispose of the question, but the EHRC an
independent behavior of duty. A violation of freedom
of expression is excluded from the outset. The
storage in accordance with § 113a TKG was
meinungsneutral.
151
cc) The constitutional complaint by the complainant
on 4) in a procedure BvR 256/08 foundered on the
principle of subsidiarity. It is not clear that legal
protection not by the specialized courts was possible.
152
b) In any case, the constitutional complaints were
unfounded.
153
aa) § 113a TKG is constitutionally unobjectionable.
154
(A) Scheme interference in the protective scope of
Article 10 GG. It, however, go only to a requirement
for private storage of certain data with the aim of
enabling a subsequent access. Thus, § 113a of the
Act differs categorically state power standards to use
the gathered data. TKG § 113a constitutes a
moderate interference with Article 10 paragraph 1 GG
dar. He only effect that the data for half a year, a
claim for cancellation of those affected were
withdrawn. The data do not relate to communications
content. They came only after an additional qualified
power standard in the knowledge area of the state.
Finally successes as storage is no secret. The data to
be stored and the duration of storage are defined
clearly and conclusively.
155
Purpose of § 113a TKG is to adapt the fight against
terrorism and serious crime in the conditions of
modern communication technologies. TKG § 113a is
suitable. He prevented that § 100g Code of Criminal
Procedure by the rise of flat rate tariffs and the
related decline of stored data in accordance with § 96
of the Act and by the steady increase in the use of the
Internet by criminals lose his footing.
156
17
The analysis of traffic data was essential for the
prosecution. In particular, it could be evidence of
crimes committed when, for stays of suspects in
crime scene area, are obtained for forward and
Nachtatverhalten of suspects to connections among
the suspects, along escape routes and to identify
further suspects. Especially for the prosecution of
drug crime, the provision of location data is important.
Traffic will come to the verification of suspects or
submissions in determining the whereabouts of
accused importance. The elucidation of the
distribution of child pornography images on the
Internet can practically only be based on traffic data.
When tied or professional knowledge of the crimes
committed on communication skills for the
investigation of organizational structures and serial
offenses is essential. Against the appropriateness of
the data also speak to the possibility of bypassing
them.
157
TKG § 113a is also required. The quick-freezing
process was not as effective. It could hold only those
data that are stored in any way. It is useful only if it
relates to a gegenwartsnahen facts.
158
Finally, § 113a TKG was also appropriate. The
Anlasslosigkeit endorse the appropriateness of the
store, not from the outset. Your say nothing about the
spread concrete related stress. The collection of
personal data would be retained not automatically
unconstitutional. The data would be stored by private
companies for a particular purpose, and only because
of further powers by the state standards noted. The
stored data according to § 113a TKG were indeed to
draw conclusions about the personality of the person
concerned, but are of limited sensitivity. They do not
concern the content of the communication and going
in terms of their personality does not have relevance
also to other existing schemes to save data. The
store also open successes. The obligation to maintain
information about whether the German law of the
Commercial Code, the Tax Code or the Banking Act
known. Constitutional limitations have developed the
Federal Constitutional Court only to query the facts.
The store itself is, moreover, but probably not too
unreasonable. However, should the data query in a
qualified way be limited. The storage period of six
months leave by the conditions justify the persecution
of specific crimes. An intimidating effect is not
produced by § 113a Act. Decisive was not the
subjective perception of the norm addressees, but a
true understanding of standards.
159
(2) the storage for the telecom service provider costs
hurt neither Article 12 nor Article 14 GG. Article 14 of
the Basic Law does not confer any general protection
of assets. TKG § 113A but neither the substance nor
the organization of the rights of the complainant
relates to their companies. The information given for
cancellation of technical facilities are unsubstantiated.
The freedom of occupation is not affected. The
plaintiffs were to practice their profession without the
challenged regulation is not different. Only the service
providers are burdened with additional duties. The
use to perform a public duty to redeem himself or
from any compensation.
160
(3) The scheme was compatible with Article 3
paragraph 1 GG. Telecommunications and direct
communication are not comparable. Direct
communication and electronic communication could
not be saved to the same extent. The difference in
treatment between telecommunications and postal
services was justified. Slow postal communication is
for use to commit criminal acts less suitable than
telecommunications. Large and small
telecommunications companies would not be treated
differently. Before unequal economic impact of the
relevant protected liberties, not the general principle
of equality. A special levy the equality principle does
not lie.
161
(4) The constitutional requirements for data security
are met. § 109 para 1 of the TKG requires the service
providers, appropriate technical means or other
measures taken to ensure the privacy, protection of
communications and protection of
telecommunications and computer systems against
unauthorized access by employees and third parties.
Operators of telecommunications systems are
required under § 109 para 3 of the TKG, the Federal
Network Agency to submit a security plan that will
describe the technical arrangements and other
protective measures to meet the obligations for data
security. It should update and rectify the request of
the Federal Network Agency. The service providers
would have to be observed according to § 113a para
10 of the Telecommunications Act in the
telecommunications sector due diligence and to
restrict access to data through special appropriations.
Violations of the secrecy of telecommunications and
data protection requirements are finable to § 148
TKG criminal or § 149 para 1 No 16-18 Act. § 115 of
the Act authorizes the Federal Network Agency to
enforce the data protection regulations. Finally, the
companies subject to the controls of the Federal
Commissioner for Data Protection and Freedom of
Information.
162
bb) § 113b, too, the Act was constitutional. It restricts
the storage purpose and is sufficiently defined. The
use of data directed to other statutory standards, the
determination of a separate examination needed. As
compared to the content monitoring of
telecommunications lesser surgery, the use of the
data security according to § 113b sentence 1 No. 2
18
TKG was not to be subject to the highest-threshold
immediate concern for legal rights. Judge
reservations were to be settled in the respective
enabling rules. The transmission of data to perform
intelligence functions under § 113b sentence 1 No. 3
TKG was not objectionable. Within certain limits, even
a anlasslose control of telecommunications content
for intelligence purposes had been assessed as a
constitutionally permissible (reference to BVerfGE
100, 313 <358 et seq).
163
cc) was also the Constitution, Code of Criminal
Procedure § 100g. The possibility of criminal
proceedings traffic query in its present form is
recognized. A comparison, more intensive
intervention in the telecommunications secret lay in
accessing stored traffic data in accordance with §
113a TKG not because more data were available.
Given the content compared with the monitoring of
telecommunications traffic data collection was the
lower weight it logically, if Code of Criminal Procedure
§ 100g less stringent requirements on the
admissibility of data collection in places as § 100a
Code of Criminal Procedure.
164
As far as § 100g para 1 No 1 is linked to the criminal
offenses of the Code of Criminal Procedure § 100a
para 2 Code of Criminal Procedure and also in case
of an offense requires considerable importance, the
Federal Constitutional Court have recognized this as
a sufficiently precise. Also § 100g, 1 No. 2 Code of
Criminal Procedure was safe. The choice of the
means of law enforcement depends on the ability to
educate the offenses in question at all. The deceptive
§ 100g para 1 No 2 and § 100g para 1 sentence 2
Code of Criminal Procedure bill, by charging for the
crimes committed by means of telecommunications
traffic demand at the reservation alternatives and the
lack of identification of another proportionality test. An
even further restriction of access opportunities in
places free for a whole range of communications by
law enforcement, even though the criminal justice
enjoying constitutional status. § 100g Code of
Criminal Procedure does not violate the core area of
private life. The telecommunications traffic concern
that despite the ability to create with the help of
communication and movement profiles, not in
intensive manner.
165
2nd The Federal Administrative Court in the
contested legislation provides for an interference with
Article 10 paragraph 1 GG, whose justification is
doubtful. The sentence in § 113b 1 TKG applications
listed are so broad that, in the time of storage is
foreseeable, should be used for what purpose the
data. It could, violation of the prohibition on the
collection of personal data to be retained vague or not
yet determinable are purposes. The fundamental
restriction is also of no small weight. The storage
requirement covers data with high personal
relevance, the major conclusions about the
personality and personal circumstances of the user,
its social environment and its movement behavior and
the nature of the content of communication was
allowed. Possible was the creation of personal
profiles. The data could have serious consequences
in the event of criminal proceedings for the individual.
Misuse of data is possible. The store has an
enormous breadth. Their spread could cause a
significant intimidation effect. On the other hand, the
data would be deleted in many cases without having
been sent to government agencies. The uses are not
limited to the protection of high-level of legal
protection. § 113b sentence 1 No. 2 TKG was not
clear from which legal rights might justify the use of
data. § 113b sentence 1 No. 3 Telecommunications
Act refers to a variety of federal and Land job
descriptions. Perhaps the data are thus intended to
protect interests which could not justify lying in the
engagement of their storage in the secrecy of
telecommunications.
166
3rd The Federal Court has by the Chairman of the
first Criminal and one of the investigating magistrate
pointed out that had been with crimes committed by
means of telecommunication data, the identification of
the perpetrator would have made so far in the time of
request for information regularly deleted already. In
terms of Internet conclusions were excluded on the
contents of experience. Because of the customary
practice of flat rate contracts, the data line is often 24
hours a day would be maintained. In this case, are
derived from the stored data in most cases not even
information on the frequency and duration of Internet
usage. In e-mail traffic, particularly the storage of the
IP address is necessary to have before the
introduction of data retention only under certain
conditions on the end of the connection also may be
stored. Since the IP addresses had been deleted in
the past few years after one to two days, a
prosecution of property crimes or acts of child abuse
is usually not have been possible. Without retention
on the internet for criminals, there is hardly any risk of
detection. There arises a legal vacuum. The
President of the Federal Court pointed out that the
traffic would only indicative effect and in need of
support through further investigations. Areas of social
behavior were not already so go areas, as this would,
apart from their preventive monitoring.
167
4th The Federal Commissioner for Data Protection
and freedom of information keeps the data according
to § 113a anlasslose the Act unconstitutional. From
their unconstitutionality follow the rules of § 113b of
the transmission Act. § 100g Code of Criminal
Procedure is unconstitutional because the use was
defined threshold unreasonably low. At the same time
19
the regulations were contrary to Article 8 against and
10 ECHR.
168
The authority for the retention was not sufficiently
specific. The uses are not limited to achieve precise
and limited. The prosecution of criminal activities in
the field of terrorism and organized crime will be
improved not sustainable, because the affected
groups of perpetrators had many opportunities to
circumvent data retention.
169
Formed the communication traffic behavior from more
intense. Particularly sensitive are data that relate to
communication with professional secrets and for
which it therefore needed differentiating rules. The
sensitivity of the data to be retained due to technical
innovations to take on. Traffic allowed to draw
conclusions about behavior and interests as well as
far-reaching insights into the movement and
communication behavior. They reflected the social
network against the person concerned. The
membership of parties, trade unions, or citizens'
groups could become clear. Together with information
on the profession or the business activity of the other
party would result from traffic draw conclusions as to
call content. Time and frequency of connections
allowed conclusions on the intensity of contacts. It
could be comprehensive personality and sociograms
images are created. Confidence in the use of modern
means of communication is affected by the term data
retention. Risks of abuse should be excluded to the
extent possible by law. The Telecommunications Act
requires neither a separated storage of the stored
data according to § 113a TKG still safe to encryption.
It contains no provisions for the award of access
permissions for logging of accesses and the
examination of historical data on individual requests.
170
Was far too inadequate to use the data for the
purpose of prosecution. Access to data should at best
stocks for the prosecution of serious crimes are
concerned. The conditions can be waived under
which a notification, are too vague and not afforded
the required individual assessment. Moreover, a
judicial review of the waiver of notification is not
provided for adequately. Regarding the use of stock
data security and compliance intelligence tasks is a
risk of too low a threshold retrieval. Inappropriate is
also that § 113b TKG, the use of the Act under §
113a stored IP addresses to identify the person
behind it according to § 113 TKG allows, since it is
also permissible for the prosecution of offenses.
171
5th The Berlin Commissioner for Data Protection and
freedom of information provides by § § 113a and
113b the Act violated the secrecy of
telecommunications in its essential content. In
addition, these regulations were contrary to the
prohibition of retention for undefined or not yet
identifiable purposes. In any case, but they allowed a
disproportionate restriction of communications. In
addition, there is no specific purpose. § 113 sentence
1 sentence 2 TKG, the use of the stored traffic data
for an exchange of information pursuant to § 113
TKG enables police, at all. Any misuse of data by
private is difficult to prevent. § 113a para 6 TKG
prevent the user to move anonymously with the help
of anonymous services on the Internet. The
protection of special relationships of trust remain
excluded. Given the seriousness of the fundamental
procedure of the Quick-freezing procedure had to be
considered as an alternative.
172
6th The expert respondents Constanze Kurz, Prof.
Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof.
Dr. Alexander Rossnagel, Prof. Dr. Christoph Ruland,
the Federal Commissioner for Data Protection and
Freedom of Information, the Berlin Commissioner for
Data Protection and Freedom of Information , the
Federal Ministry of Justice, composed of Federal
Ministry of Economics and Technology and the
Ministry of the Interior, the complainant in the
proceedings a BvR 256/08 and 263/08 a BvR and the
Federal Association for Information Technology,
Telecommunications and New Media (BITKOM), the
Association of German Internet Economy (eco) and
the Association of Telecommunications and Value-
Added eV (VATM) have spoken on technical, factual
and legal questions of the court. These concern the
communication traffic, the data retention obligated, by
means of telecommunications crime committed, the
exchange of information pursuant to § 113 TKG,
security of supply data against unauthorized access
and possible legal embodiment of the use of this
data. In the opinion of the Ministry of Justice have
been involved through the Federal Ministry of
Economics and Technology, the Federal Network
Agency and the Federal Ministry of the Interior, the
Federal Criminal Office, the Federal Constitution and
the Federal Prosecutor.
173
7th In addition, the association of users of commercial
telecommunications eV (eV TELECOM), the
Association of German Publishers and Booksellers
Association and the Association of Music Industry
Association expressed its opinion.
IV
174In the hearing, have expressed themselves: the
complainant, the Federal Government, the BKA, the
Federal Network Agency, the Bavarian State
Government, the Federal Commissioner for Data
20
Protection and Freedom of Information, the Berlin
Commissioner for Data Protection and freedom of
information, as expert resource persons, Prof. Dr. Dr.
hc Hans-Jörg Albrecht, Constanze Kurz, Prof. Dr.
Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr.
Alexander Rossnagel, Prof. Dr. Christoph Ruland, the
Federal Association for Information Technology,
Telecommunications and New Media (BITKOM), the
Association of German Internet Economy (eco), the
Association of Telecommunications and Value-Added
eV (VATM), the Association of German Publishers
and Booksellers Association and the Federal
Association of Music Industry
B.
175
The constitutional complaints are allowed.
I.
176
1st The complainants allege a violation of the legal
provisions of Article 10 paragraph 1 GG. They use
various telecommunications services such as private
and business telephone services in particular,
services of electronic mail and the Internet, and claim
to have been affected by the storage and intended
use of their connection to their fundamental right to
maintenance of the telecommunications secrecy.
Since Art.10 para 1 Basic Law protects the
confidentiality of the circumstances of
telecommunications operations (see BVerfGE 67, 157
<172>, 85, 386 <396>, 120, 274 <307>; established
case-law), such a violation by the contested
legislation possible.
177
The contested provisions concerning the complainant
also directly, and present themselves. Although
directed the storage requirement of § 113a TKG not
to the complainants concerned as a user, but to the
service provider. However, these are, without a
decision space (see BVerfGE 107, 299 <313 f.>)
strictly for storing the data of the complainant
committed. TKG § 113a thus leads directly to a store
and present data of the complainant for the one
sentence in § 113b TKG intended purposes.
178
On a direct Selbstbetroffenheit lacking with respect to
§ 113b § 100g Code of Criminal Procedure and the
Act not because these rules only develop on the
basis of further acts of enforcement effects and it is
uncertain whether and to what extent just data, the
complainant will be affected. If the person obtained
no knowledge of the law enforcement records,
sufficient information to demonstrate to be touched
with some probability of such measures. Is relevant
for this particular whether the measures have a large
spread and third parties also can enter by chance
(see BVerfGE 109, 279 <307 f.>, 113, 348 <363>,
120, 378 <396 f.>). Thereafter, the complainants
have expressed their own concern and immediate
enough. Given the substantial storage period of six
months and the large spread of the collected data, it
is not unlikely that in the transmission and use of the
data according to § 113b § 100g Code of Criminal
Procedure and the Act also affects people who have
given no cause for appropriate action. Statement, by
the complainant would have to accuse of crime in
order to document the Selbstbetroffenheit not
necessary (see BVerfGE 109, 279 <308>, 113, 348
<363>, 120, 378 <396 f.>). Nor should they prove to
be responsible for significant threats to public safety
or to develop activities that affect the task of the
intelligence cycle.
179
2nd The constitutional complaint by the complainant
on 4) in a procedure BvR 256/08 is also admissible
as regards Article 12 paragraph 1 GG, where she
objects to the storage requirements associated with
the technical and financial burdens. As an anonymity
service provider, which also operates also a publicly
accessible web server, they meet the requirements of
§ 113a in principle the Act, are so far without
compensation or compensation rules provided. Since
the failure to comply with these obligations is armed
with a fine (see § 149 para 1 No 36, para 2 TKG), it is
also not reasonable, in violation of § 113a TKG to
await execution file and then search against this legal
fachgerichtlichen (see BVerfGE 81, 70 <82>). She is
so affected by the storage obligation directly, and
present themselves in their professional freedom.
II
180
The constitutional complaints are not inadmissible to
the extent the challenged regulations adopted
pursuant to the Directive 2006/24/EC are.
181
However, the Federal Constitutional Court's
jurisdiction exercised on the applicability of
Community or now Union law, which is the basis for a
behavior of German courts and authorities within the
jurisdiction of the Federal Republic of Germany
claimed, in principle, not be verified this law is not on
the scale of the fundamental rights of the Basic Law
as long as the European Communities (or now the
European Union), in particular the European Court of
Justice, the effective protection of fundamental rights
guarantee in general, without that fundamental law in
21
each case as indispensable requisite of fundamental
rights is to respect essentially similar, especially since
the essence of fundamental rights generally
guaranteed (see BVerfGE 73, 339 <387>, 102, 147
<162 f.>). These principles also apply to national
laws, the mandatory requirements of a directive
implemented in German law. Constitutional
complaints that are directed against the use of
binding in this sense, the European Union law, are
strictly prohibited (see BVerfGE 118, 79 <95>, 121, 1
<15>).
182
The complainant may relate to the fundamental rights
of the Basic Law, however, so far called as the
legislature in implementing Union law, freedom has,
that is, by Union law is not determined (see BVerfGE
121, 1 <15>). In addition, the present constitutional
complaints are also permissible if the challenged
provisions are based on policy rules that have a
mandatory content. The complainants claim that it
lacked the Directive 2006/24/EC on a Community
basis of competence and it is contrary to European
Grundrechtsverbürgungen. They strive, therefore,
among other things, without that they could do this
immediately, given their constitutional complaints
against the implementation of law directed against the
specialized courts, a submission by the Federal
Constitutional Court to the European Court to give
preliminary rulings under Article 267 TFEU (formerly
Art 234 TEC), the Directive declares void and do so
the way clear for a review of the challenged
provisions in the light of German fundamental rights.
In any event, in this way an examination of the
challenged provisions in the light of the fundamental
rights of the Basic Law in accordance with the
request of the complainant is not excluded.
C.
183
The constitutional complaints are justified in essence.
The challenged provisions violate the complainants in
their fundamental right under Article 10 paragraph 1
GG. A submission to the European Court of Justice
can not be considered because it is not possible on a
priority of Community law matters. The fundamental
rights guarantees of the Basic Law are a - different
layout - implementation of Directive 2006/24/EC does
not prevent.
184
The constitutional complaint is unfounded the
complainant on 4) in a procedure BvR 256/08, where
such claims infringement of Article 12 paragraph 1
GG.
 I.
185
The constitutional give no cause for a preliminary
ruling before the European Court of Justice under
Article 267 TFEU. Would have been an appropriate
submission by the Federal Constitutional Court (see
BVerfGE 37, 271 <282>) are, in particular, if the
interpretation or the validity of Community or Union
law are involved, the priority claim before national law
and its implementation by the Federal principle, not
by the scale of the fundamental rights of the Basic
Law is examined. However, such a template can only
be acceptable and necessary when it comes to the
interpretation or validity of EU law. This is not the
case.
186
The effectiveness of the Directive 2006/24/EC and a
therefrom may result therefrom primacy of EU law
over German fundamental rights are not relevant. The
content of the Directive leaves the Federal Republic
of Germany for the design of the required retention of
telecommunications traffic in her a broad margin of
discretion. The Directive requires Member States but
to the operators of publicly available electronic
communications networks and communication
services for storage of virtually all
telecommunications traffic data for a period of at least
six months imposing (Articles 1, 3, 5 and 6 of
Directive 2006/24/EC). Their rules are, but essentially
limited themselves to recording obligations and not
allow access to the data or their use by the authorities
of the Member States. In particular, they harmonize,
neither the question of access to information by the
relevant national law enforcement authorities, the
question of the use and exchange of information
between these authorities (see ECJ, Judgement of 10
February 2009 - Case C-301/06 - marg. 83). Based
on the minimum requirements of the Directive
(Articles 7 and 13 of Directive 2006/24/EC), it also
lies with the Member States to take the necessary
measures to ensure data security, transparency and
redress.
187
This content may Directive without violating the
fundamental rights of the Basic Law to be
implemented. The Constitution prohibits such a store
not in all circumstances. Rather, they can also
become independent of an eventual supremacy of
Community law according to the requirements of
fundamental rights of the Basic Law arranged
permitted (see below IV). An examination of the
challenged provisions on the total scale of the
German fundamental rights is not to be so in conflict
with the Directive 2006/24/EC, making it to the validity
and priority is not important.
22
II
188
The challenged regulations do not intervene in Article
10 paragraph 1 GG.
189
1st Article 10 paragraph 1 GG guarantees the
secrecy of telecommunications, which is the
intangible transfer of information to individual
recipients with the help of telecommunications (see
BVerfGE 106, 28 <35 f.>, 120, 274 <306 f.>) in front
of a note by The public authorities shall protect (see
BVerfGE 100, 313 <358>, 106, 28 <37>). This
protection covers not only the content of
communication. but is within a protected the
confidentiality of the circumstances of the
communication, including, in particular, whether they
took place, when and how often between the persons
or telecommunications equipment
telecommunications market or being tempted (see
BVerfGE 67, 157 <172>, 85, 386 < 396>, 100, 313
<358>, 107, 299 <312 f.>, 115, 166 <183>, 120, 274
<307>).
190
The protection provided by Article 10 paragraph 1 GG
is not only the first access, content with the public
power of telecommunications operations and takes
note. Its protective effect also extends to the
information and data processing, which follow on from
the note of protected communication processes, and
the use that is made of the acquired knowledge (see
BVerfGE 100, 313 <359>). A fundamental operation
is any inspection, recording and recovery of
communications data and any analysis of its content
or other use by the public authority (see BVerfGE 85,
386 <398>, 100, 313 <366>, 110, 33 <52 f.>) . In the
collection of telecommunications data, their storage,
their comparison with other data, its analysis, its
selective for further use or transmission to third
parties that are each in their own intervention in the
telecommunications secrecy (see BVerfGE 100, 313
<366 f.>). Consequently, lies in the arrangement to
communications companies, telecommunications
data to collect, store and transfer them to government
bodies, each intervention in Article 10 paragraph 1
GG (see BVerfGE 107, 299 <313>).
191
That comes under Article 2 para 1 in conjunction with
Article 1 paragraph 1 GG following right to
informational self-determination in addition to Article
10 of the Basic Law does not apply. In terms of the
Telecommunications Basic Law Article 10 contains a
specific guarantee, which replaced the general rule
and result from the specific requirements for the data
obtained by interfering with the secrecy of
telecommunications. In that regard, however, can the
conditions under which the Federal Constitutional
Court has developed under Article 2 para 1 in
conjunction with Article 1 paragraph 1 GG,
transferred to a large extent on the more specific
guarantee of Article 10 of the Basic Law (see
BVerfGE 100, 313 <358 f.>).
192
2nd a) in § 113a paragraph 1 TKG imposed on
service providers of telecommunications traffic data
retention interferes with telecommunications secrecy.
This is the case for the retention obligations in
respect to telecommunications services pursuant to §
113a para 2-5 Telecommunications Act and in
connection herewith pursuant to § 113a para 6 and 7
of the Act. The extent to give the records to ascertain
whether, when, where and how often taken between
which telecommunications connections, or to be
incorporated has been tried. This particularly applies
to the storage of data services to the electronic mail
pursuant to § 113a para 3 TKG whose confidentiality
is also protected by Article 10 paragraph 1 GG (see
BVerfGE 113, 348 <383>, 120, 274 < 307>). That
can intercept e-mails technically easy changes to
their confidential nature and its need to protect
anything. An interference with Article 10 paragraph 1
GG reasons for the storage of data relating to the
Internet pursuant to § 113a para 4 the Act. While the
Internet allows not only the admission of individual
communications, come under the protection of
telecommunications secrecy, but also to participate in
mass communication. Since a distinction between
individual and mass without the protection of the
fundamental contrary connection to the content of
each transmitted information is not possible is to see
already in the storage of the Internet as such data
relating to an intervention, even if data on the
accessed web pages not included (see Gusy, in: v.
Mangoldt / Klein / Starck, GG, Volume 1, 5th edition
2005, Article 10 para. 44; Hermes, in: Dreier, GG,
Volume 1, 2nd edition 2004, Article 10 para. 39).
193
The quality of the intervention TKG § 113a is not
called into question that the storage required by this
rule is not executed by the state itself, but by private
service providers. For these are taken only as
assistants to do the job by state authorities to
complete. TKG § 113a, the private
telecommunications companies to store data required
solely for the performance of work by state agencies
for purposes of law enforcement, security and
compliance intelligence tasks according to § 113b
Act. It assigns the state associated with the storage of
fundamental effect on directly, without the
speicherungspflichtigen company so far remains a
scope for action, and the data to be registered so that
legitimate requests for information public authorities
can be met without delay according to § 113a para 9
Act. Under these conditions, the storage of the data is
legally attributable to the legislature as a direct
23
interference with Article 10 paragraph 1 GG (see
BVerfGE 107, 299 <313 f.>).
194
b) violations of basic rights in Article 10 paragraph 1
GG are also in the arrangements for data
transmission in a sentence a sentence of § 113b Act.
Although this provision opens in itself does not use
the stored data according to § 113a TKG, but refers
to another law to be created specifically request
standards. However, it is the fundamental provision
may be used for what purposes the data. You respect
the free telecommunications companies from its
addition in applicable confidentiality. That the data
ultimately used only in the final graded mesh of rules
at various levels of their standard set of rules will not
alter the fact that the definition of the uses and
permission to use part of the data transmission
scheme and the extent interference nature. Again, it
is irrelevant that § 113b TKG transfers the data
relates to the part of private service providers. The
proposed transfer is based on a legal regime and
thus directly to an act of grundrechtsgebundenen
under Article 1 paragraph 3 GG public authority is a
sovereign arrangement in advance case and made to
authorities. It is thus legally regarded as an
interference of the state.
195
c) any interference with Article 10 paragraph 1 GG
also justified a sentence of § 113b sentence 2 in
conjunction with § 113 paragraph 1 TKG. It allows
authorities by service information on inventory and
customer data in accordance with § § 95, 111
Telecommunications Act require that service
providers can only use the after § 113a para 4 TKG
identify stored data. Apart from the question of
whether and to what extent general information in
accordance with the Act § 113 is an interference with
Article 10 paragraph 1 GG or whether so far only in
principle the right to informational self-determination
under Article 2 para 1 in conjunction with Article 1,
para . 1 GG is relevant is, at least for information
pursuant to § 113b sentence 1 sentence 2, § 113
para 1 affirmative TKG an interference with
telecommunications secrecy under Article 10
paragraph 1 GG. For it is here the use of stored
according to § 113a TKG and regulated so that
through their impact on Article 10 paragraph 1 GG
acquired data. Each subsequent use of data that
were once collected in the form of an interference
with Article 10 paragraph 1 GG is always to live up to
this fundamental right (see BVerfGE 100, 313 <359>,
110, 33 <68 f.>; 113, 348 <365>). Again, it can not
get out that this is not legally required use by the
public sector itself, but - in fulfillment of the request -
through private providers.
196
d) any interference with Article 10 paragraph 1 GG
eventually founded § 100g Code of Criminal
Procedure. It enables law enforcement agencies, the
stored according to § 113a of the
Telecommunications Act data can be transmitted to
the storage and obligated to use. § 100g para 1
sentence 1 Code of Criminal Procedure, and even
makes the use of this power grab as acts of public
violence, therefore, also in the scope of Article 10
paragraph 1 GG.
III.
197
Meet formally with the challenged provisions are no
objections. They satisfy the statutory reservation of
Article 10 paragraph 2 sentence 1 GG, and are
covered by federal jurisdiction.
198
1st Restrictions on telecommunications secrecy may
be arranged only on the basis of a law under Article
10 paragraph 2 sentence 1 GG. No doubt be subject
to the extent initially TKG § 113b and § 100g Code of
Criminal Procedure, which - will, where appropriate,
in conjunction with other regulations - a legal basis for
the adoption-case arrangements, under which the
access to the data. Constitutionally unobjectionable
so far is also § 113a TKG, which for the storage of
the data does not refer to instructions on specific
cases, but this immediately imposes itself. Article 10
paragraph 2 sentence 1 GG restrictions on
telecommunications secrecy is also directly by law
does not prevent (see BVerfGE 85, 386 <396 et seq).
199
2nd The federal government does not lack a
legislative powers. , § § 113a, 113b TKG find their
competence basis in Article 73 paragraph 1 GG No 7,
§ 100g Code of Criminal Procedure are found in
Article 74 paragraph 1 No. 1, Article 72 para GG first
200
Article 73 para 1 No 7 GG entitled immediately but
only to regulate the technical side of creating a
telecommunications infrastructure and information
transmission by means of telecommunications
systems. Standard covers are not accepted by the
rules, which are addressed to the transmitted content
or the nature of the use of telecommunications (see
BVerfGE 113, 348 <368>, 114, 371, <385>) and
about one interception for the purpose of obtaining
information providing for duties of law enforcement or
security. Such regulations are in relation to the
legislative respectively attributable to the legal field,
for the purposes of the monitoring is done (see
BVerfGE 113, 348 <368>).
201
, § § 113a and 113b of the Act are the power to
regulate the telecommunications law, however, also
24
detected as part of the Data Protection Act hereby to
be connected by virtue of material connection.
Absence of an express conferral is the right of privacy
in principle the responsibility of the countries. A
federal responsibility for the scheme exists by virtue
of material connection, however, insofar as the
federal government on legislation assigned to him a
matter regulate verständigerweise can not, without
the data protection provisions be adjusted too (cf.
BVerfGE 3, 407 <421>, 98, 265 <299> , 106, 62
<115>, 110, 33 <48>; established case-law, privacy
law, see Simitis, in: Simitis, BDSG, 6th edition, 2006,
§ 1 para. 4). This is for § § 113a, 113b of the Act
case. These are related to the provisions of the
Telecommunications Act on data protection and
normalized in reference to the regulation of the
technical conditions of the transmission of information
to be observed in each of the requirements for
dealing with the provision of telecommunications
services produced or processed data. They tie in
directly to those situations that fall within the scope of
legislation matter of telecommunications. Because of
this close link between the technical transfer process
and the resulting data can provide the necessary data
protection scheme being used only in a uniform made
by the federal legislature has the power to regulate
the transmission process. To do otherwise risks an
inconsistency causing disintegration of the technical
and data protection regulations for data processing.
Accordingly, the Telecommunications Act, in addition
to the provisions of § § 113a and 113b
Telecommunications Act and the secrecy of
telecommunications in § § 88 ff TKG also in § § 91-
107 TKG extensive area-specific data protection
regulations, which kompetenzielle legality before - not
apparently been - was seriously in doubt.
202
The range for the federal government can take on this
responsibility basis of the provisions that are
necessary to control this basic right of data usage. In
particular it may include clauses that are necessary to
ensure that the Act provided for in § 113 a data
storage and transmission of data to law enforcement
and security agencies and intelligence services and
their use for the communication of information under
§ 113 TKG the fundamental rights requirements of
Article 10 para . meet a GG. Since require
intervention in Article 10 paragraph 1 GG, that its
purpose is intended area specific, precise and
normenklar (cf. BVerfGE 100, 313 <359 f.>; 110, 33
<53>; 115, 320 <365>; 118 , 168 <187 f.>), this
includes the competence to sector-specific, precise
and normenklaren scheme of the purpose of storage.
The legislative powers of the Federal sufficient in this
regard but only as far as is necessary, according to
data protection considerations and the items related
to constitutional requirements. The authorizations to
data retrieval itself can not support the federal
government, therefore, on Article 73 para 1 No 7 GG.
He needs for one's own competence permit or the
decision must be left to inform the countries.
203
§ § 113a, 113b TKG take the bill in principle. They
limit themselves to creating obligations by storing and
transmission schemes, the conditions for a
government access to data. The filling of contrast
remains left to its own rules for data retrieval. Without
prejudice to the substantive question whether the
federal government the uses this has sufficiently
limited in scope (see below CV VI 5 and 3 b), are
against this vocational colleges to raise no objections.
IV
204
Material, are unconstitutional interference with
telecommunications secrecy if they are to serve
legitimate public purposes and, moreover, satisfy the
principle of proportionality (see BVerfGE 100, 313
<359>), that is, to achieve the purposes of
appropriate, necessary and reasonable (see BVerfGE
109, 279 <335 et seq, 115, 320 <345>, 118, 168
<193>, 120, 274 <318 f.>; established case-law).
205
A six-month retention of telecommunications traffic
anlasslose qualified for uses in connection with law
enforcement, security and the role of intelligence, as
is the § § 113a, 113b arranged TKG, then with Article
10 of the Basic Law is not absolutely incompatible.
The legislature may pursue such a scheme legitimate
purposes for the attainment of such storage in the
sense of the proportionality principle is appropriate
and necessary. One such store is lacking in terms of
proportionality in the strict sense, not in advance of
any justification capability. In one embodiment, the
weight of the specific inherent in this procedure takes
sufficient account unterfällt not already a anlasslose
storage of telecommunications traffic, as such, the
strict prohibition of storage of data on stocks in the
jurisprudence of the Constitutional Court (see
BVerfGE 65, 1 <46 f.>, 115, 320 <350>, 118, 168
<187>).
206
1st The more effective law enforcement, security and
the fulfillment of the tasks of the intelligence services
are legitimate purposes that an intervention can in
principle justify the secrecy of telecommunications
(see BVerfGE 100, 313 <373, 383 f.>, 107, 299
<316>; 109 , 279 <336>, 115, 320 <345>). It is an
illegitimate, the principle of freedom of Article 10
paragraph 1 GG self-transcending objective is not
already in it, should the communication traffic to be
secured anlasslos precaution. Article 10 paragraph 1
GG does not prohibit any precautionary collection and
storage of data at all, but protect against an
25
unreasonable design of such data collection and, in
this particular against boundless stated end. Is strictly
prohibited only the storage of personal data to be
retained, vague and not definable purposes (see
BVerfGE 65, 1 <46>, 100, 313 <360>). A
precautionary anlasslose data storage is only
permitted in exceptional cases. It is subject to terms
of their justification, and in its design, particularly in
relation to the proposed uses, particularly strict
requirements.
207
2nd A precautionary anlasslose retention of
telecommunications traffic data for later transmission
to the event-responsible for law enforcement or
security authorities or to the intelligence may view the
legislature to achieve its objectives as appropriate. It
will thus create opportunities to raise awareness that
there were usually not given the increasing
importance of telecommunications to the preparation
and commission of crimes in many cases of success.
It is irrelevant whether the regulations created by the
legislator will be able to reconstruct fully all
telecommunications links. Although ensure such data
may not mean that all communication lines reliably
specific port workers may be assigned, and some
criminals to store through the use of hotspots, internet
cafes, international Internet telephony services and
undermined under false names registered prepaid
mobile phones can, this can be the suitability of a will
not oppose such legislation. This does not require
that the legislative objective is actually achieved in
each individual case, but merely requires that the
purpose of achieving is encouraged (see BVerfGE
63, 88 <115>, 67, 157 <175>, 96, 10 <23>, 103, 293
<307>).
208
3rd The legislature may judge a six-month retention
of telecommunications traffic as necessary. Less
restrictive means to enable as far-reaching
awareness campaigns, are not apparent. A similarly
effective educational opportunity lies not in particular
in the so-called Quick-freezing procedure is ordered
when the place of the anlasslos-general retention of
telecommunications data, a storage only in individual
cases and only on the date on which this example
due to a certain suspicion of concrete occasion
exists. Such a process can capture the data from the
period before the order of their storage, only if they
are still present, is not as effective as continuous
storage, which ensures the presence of a complete
data set for the last six months.
209
4th A six-month retention of telecommunications
traffic in one as in § 113a TKG extent provided in
advance is not disproportionate in the narrow sense.
210
a) However, it is in such a store is a very serious
engagement with a range as it's legal does not know
so far: It covers the whole six months, virtually all
telecommunications traffic data of all citizens without
any connection to one attributable reprehensible
conduct, a - even abstract - dangerous or otherwise a
qualifying situation. The storage refers to everyday
action, in everyday life and fundamental for
participation in social life in the modern world is no
longer dispensable. Basically, any form of
telecommunications is in principle excluded from the
storage. While the system can result in occasional
gaps, which prevent each and every
telecommunications connection can be reconstructed
individualizing, how might when using hotspots,
confusing private networks or service providers in
non-European countries. A regular alternative to the
citizen, this opens up is not. The legislature tried but,
in principle, capture all the communication lines so
that users can be identified widely as possible.
211
The strength of the data is extensive. Depending on
the use of telecommunications services from the
persons concerned have already from the data itself -
to win and even if they serve as starting points for
further investigation - a deep insight into the social
environment and the individual activities of every
citizen. It is true that a telecommunications traffic
data, as provided in § 113a Telecommunications Act,
only the connection data (time, duration, and involved
connections - detained for mobile telephony - the
site), but also the content of communication. From
these data do, however, if a comprehensive and
automated analysis to draw in the privacy of the
contents spilling conclusions. Recipients (whose
membership of certain occupational groups,
institutions or interest groups or the services they
provide), data, time and location of telephone
conversations allow when they are observed over a
longer period, in combination, detailed statements on
social or political affiliations, and personal
preferences , tendencies and weaknesses of those
whose connection to be evaluated. There is no
confidentiality protection being required. Depending
on the use of telecommunications and the future in
increasing density, such a storage enable the
creation of meaningful personal and motion profiles
virtually every citizen. In terms of groups and
associations, the data also may allow the detection of
internal control structures and decision processes.
212
A storage that are justified in principle, allows such
uses and to allow in certain cases, a serious
interference. Of weight here is also that,
independently of much of whatever controlled
embodiment of the data use increases the risk of
citizens that are the subject of further investigation,
without having even given rise to it. It ranges from, for
example, at a bad time in a particular cell or had been
26
contacted by a particular person to be, to be exposed
to a large extent to be under investigation and
statement printing. The abuses associated with such
data, exacerbate the stressful effects. This is
especially true because of the wide variety of private
providers, where the telecommunications data to be
stored. have already given the number of
Speicherungsverpflichteten is the number of those
big, the have access to such data and have. Since
the storage requirement mitbetrifft smaller service
providers, the backup comes from abuse regardless
of all possible and necessary efforts of legislators in
view of their performance to structural limitations.
This is reinforced by the fact that the requirements to
assume the data management and transmission of
data to the authorities a high degree of technical
mastery and sophisticated software, which combines
an inherent risk of vulnerabilities and the risk of
manipulation by interested third parties. Special
attention given to storage of telecommunications data
remains the fact that they themselves and the
proposed use of the stored data by those concerned
not observed directly, but also capture compounds
which are included under confidentiality expectations.
This anlasslose the retention of communication traffic
is likely to evoke a feeling of vague threatening
Beobachtetseins that can affect the impartial exercise
of fundamental rights in many areas.
213
b) Despite the extraordinary spread and the
consequent interference with their weight is the
legislator to introduce a six-month storage
requirement, as provided in § 113a TKG, absolutely
not constitutionally prohibited. However, it
corresponds to the case law of the Constitutional
Court that the state has a collection of personal data
to be retained vague or not yet determinable
purposes is strictly prohibited constitutionally (see
BVerfGE 65, 1 <46>, 100, 313 <360>, 115, 320
<350>, 118, 168 <187>). To advance such a
prohibited form of data collection is a precaution
anlasslosen retention of telecommunications traffic
data is not in every case. If they are for specific
purposes, such storage can meet in an integrated
surgery adequate legal arrangements (see below V)
but also the requirements of proportionality in the
strict sense.
214
aa) A crucial factor is this, first, that the proposed
retention of telecommunications traffic is carried out
not directly by the state but by a commitment from the
private service provider. The data will be merged so
that the storage has not itself, but remain divided on
many individual companies and are not directly
applicable to the state as a whole are available. This
has in particular, which is to ensure that the
arrangements and technical arrangements, no direct
access to the data. The retrieval of data by state
agencies shall be made only in a second step, and
now as circumstances require closer to legally
established criteria. The design of the can for retrieval
and further use of the stored data while empowering
provisions ensure that the storage is not too vague or
not yet identifiable purposes. It can and must be
guaranteed in the arrangement of such a retention
requirement that an actual acknowledgment and use
of the data limited in normenklarer form in a way is
that the weight of the extensive data collection into
account, and the retrieval and the actual use of data
to the strictly necessary part of data collection is
limited. The separation of storage and retrieval
promotes structurally at the same time - to further
refinement by legal guarantee of amounts due -
transparency and control of data usage.
215
bb) A six-month retention of telecommunications
traffic data points not already out of themselves, the
principle of Article 10 paragraph 1 GG as such, it
violates neither the core human dignity (Article 1
paragraph 1 GG) nor its essential content (Art. 19,
para . 2 GG). It remains, despite its extraordinary
breadth still limited. Thus the content of
telecommunications is omitted from the traffic on the
limited storage. It also remains the storage time
limited in time. Although a storage period of six
months, given the scale and significance of the data
stored very long and is located at the upper limit of
what is under rechtfertigungsfähig proportionality
considerations. After its expiry, the citizens could rely
on their data - if they were not retrieved from
exceptionally weighty occasion - will be deleted and
no one is reconstructed.
216
cc) A retention of telecommunications traffic data for
six months presents itself not as a measure that
would have to censuses of communication or
activities of the citizens generally created. Rather, it
links in a permanent way is still limited to the
particular importance of telecommunications in the
modern world and to respond to the specific risk
potential associated with this. The new
telecommunication means to overcome time and
space in a manner incomparable with other forms of
communication and in principle to the exclusion of
public perception. They facilitate communication, and
with it the covert action of offenders and it also
scattered groups of a few allow people to come
together and work together effectively. By virtually
resistance-free communication is a pooling of
knowledge, action-taking and criminal energy is
possible, preferring the security and law enforcement
on new tasks. Some crimes take place immediately
with the help of new technology. Forming part of a
conglomerate of communicating technically exist only
computers and computer networks such activities well
beyond the observation. At the same time they can
establish - through attacks on the telecommunications
of third parties - also new dangers. A reconstruction
27
particularly the telecommunications links are essential
for effective law enforcement and security is of
particular importance.
217
In addition, there are terms of telecommunications
data for lack of public visibility and no social memory,
which is just one area allowed to reconstruct past
events on the basis of random memory:
telecommunications data is either removed, and then
completely lost or saved and are therefore fully
available. Therefore, should the legislature to decide
how far such data to delete or save are to make a
balance of interests and consider the interests of
state to task performance. Here it can also include in
its considerations that the distribution of certain
contractual arrangements of the telecommunications
service providers (such as the increase in flat rates)
for application of a strict requirement for deletion of
telecommunications traffic, which are not required for
contract implementation, reduces the availability of
such data. There too, can support the precautionary
saving of telecommunications traffic on factors in the
characteristics of modern telecommunications have a
specific reason.
218
Conversely, should the retention of
telecommunications traffic will not be understood as a
step towards a legislation that was aimed at a
possible comprehensive precautionary storage of all
for the prosecution or threat prevention useful data.
Such legislation would be inconsistent regardless of
the format of the use of schemes, from the start with
the Constitution. The constitutional safety precaution
anlasslosen a storage of the communication traffic
requires, rather, that this remains an exception. It
may not even lead in conjunction with other existing
files reconstructability virtually all activities of citizens.
Relevant for the justification of such storage capacity
is therefore in particular that they are not done
directly by government bodies, not covering the
content of communication and that the store is called
by its customers by commercial Internet service
provider prohibited. The introduction of
telecommunications traffic data can therefore not
serve as a model for the creation of further precaution
occasion wireless data collection, but forces the
legislature to consider new storage obligations or
privileges in view of the totality of the various existing
data collections to greater restraint. may be that the
freedom of exercise of the citizens not covered
completely and registered on the constitutional
identity of the Federal Republic of Germany (see, part
of the Basic Law Identity reserved Constitutional
Court, Judgement of the Second Senate of 30 June
2009-2 BvE 2 / 08, etc. -, juris, para. 240), for the
observance of which the Federal Republic must be
used in European and international contexts. By a
precautionary saving of telecommunications traffic,
the scope for further data collection anlasslose also
about the way the European Union significantly
reduced.
219
dd) In a six-month retention of telecommunications
traffic in which the legislature is in § 113a para 1-8
TKG extent provided under the present
circumstances is not disproportionate from the outset.
For their safety, however, is constitutional, provided
that the design of storage and use of the specific
weight of such data storage due consideration.
V.
220
The design of a precautionary telecommunications
traffic data, as provided in § 113a TKG subject to
specific constitutional requirements, particularly with
regard to data security, the extent of the use of data,
transparency and legal protection. Only when
sufficiently advanced in this regard and normenklare
arrangements are made, the interest in such a
storage operation is relatively proper.
221
1st A recording of telecommunications traffic in the
scope of § 113a of the Act requires statutory
guarantee of a high standard of data security.
222
Given the scale and potential significance of the
created with such databases is storing the data for
the proportionality of the challenged provisions of
great importance. This is especially true because the
data are stored in private service providers who act
under the conditions of efficiency and cost pressures
and thus have limited incentives to ensure data
security. They deal in principle and private-are not
bound by specific duties. At the same time the risk of
illegal access to data is large because, in view of their
multiple significance can be attractive for a variety of
stakeholders. Commandments is thus a particularly
high standard of security that goes beyond the
generally constitutionally required measure for the
data retention of telecommunications. Such
requirements for data security be paid to both the
storage of data and for providing it, as it calls for
effective safeguards to ensure the erasure of the
data.
223
In statements made at the hearing and in written
comments submitted to this procedure from a wide
range of expert page of instruments to increase the
data has been presented. Called as a separate
storage under § 113a of the Act were to be stored on
physically separate and decoupled from the Internet
computers, connected by asymmetrical cryptographic
encryption under separate custody of the keys, the
28
specification of the four-eye principle for accessing
the data with advanced methods for authentication for
access to the keys, the audit logging of access to
data and their deletion and the use of automated
error correction method and plausibility. In addition to
such technology-oriented instruments and the
creation of information in data breaches, the
introduction of strict liability or a strengthening of
compensation claims has been called for moral
damages, in order to create incentives for the
implementation of an effective data protection.
224
The Constitution does not purport to detail, which are
offered Sicherheitsmaßgaben in detail. The result
must, however, a standard to ensure the guaranteed
under specific regard to the characteristics of jobs
created by a precautionary telecommunications data
storage data sets a particularly high level of security.
This includes ensuring that this standard - for
example, using figures based on ordinary law as the
state of the art (see Heibey, in: Rossnagel, manual
data protection law, 2003, p. 575, para. 19, p. 598,
para. 145; Tinnefeld / Ehrmann / Gerling, Introduction
to the Data Protection Law, 4th edition 2005, p. 628) -
on the development of the technical discussion
oriented and continuously absorbs new knowledge
and insights. Accordingly, to provide that the
speicherpflichtigen business to adapt - for example
on the basis of periodic refreshing security concepts -
their actions therein verifiable. The potential danger
arising from the databases in question are allowed,
not to impose the security requirements described in
a free assessment of general economic factors. If the
legislature a comprehensive retention of
telecommunications traffic invariably required, it is
one of the necessary requirements that covered
entities can not only fulfill their duty to store, but also
the corresponding requirements for data security.
Building on the expert opinions, it is suggested that,
in principle, in the current state of discussion, a
separate storage of the data, a sophisticated
encryption, a secure access regime, using some of
the four-eye principle and an audit logging must be
met to ensure safety the data to provide
constitutionally sufficient.
225
Necessary legal arrangements that such a particularly
high standard of security in that person at least
pretend the merits normenklar and binding. It is up to
the legislature, the technical specification of the
predetermined scale trust regulatory authorities. The
legislature has, however, while ensuring that the
decision not on the type and level of protection to be
taken ultimately uncontrolled in the hands of the
respective telecommunications provider. The
wrongful requirements are differentiated by either
pretending technical regulations - may standard
graded on different levels - or in general-a general
way and then flesh out in a transparent manner by
binding individual decisions of regulators to the
individual companies. provided constitutionally
continue to be transparent to the public scrutiny with
the involvement of the independent data (see
BVerfGE 65, 1 <46>) and a balanced system of
sanctions, which also attaches to breaches of data
security a reasonable weight.
226
2nd A retention of telecommunications traffic, as
provided in § 113a TKG is to continue to advance
legal regulations on the use of this data. The relative
configuration of the usage rules not only decide on
the constitutionality of an overriding provisions
establishing itself, but acts on the constitutionality of
the already stored back as such. According to the
jurisprudence of the Constitutional Court, the
conditions for data use and their scope in the relevant
legal principles are more closely restricted, the
heavier the weight of the storage lying intervention.
Reason, purpose and extent of the surgery and the
corresponding interference levels are regulated by
the legislature sector-specific, precise and
normenklar (see BVerfGE 100, 313 <359 f.>, 110, 33
<53>, 113, 29 <51> , 113, 348 <375>, 115, 166
<191>, 115, 320 <365>, 118, 168 <186 f.>).
227
Use of systematic saving by anlasslos virtually all
traffic Telecommunications stocks gained data
accordingly be subject especially stringent
requirements. In particular, this is not to the same
extent constitutionally permissible, such as the use of
telecommunications traffic, the service provider,
depending on the particular operational and
contractual circumstances - from the customer may
be influenced in part - save to § 96 TKG. Given the
inevitability of, completeness, and thus increased
relevance of the precautionary systematically
collected over six months of their traffic demand has
a much greater weight. As an analysis of these data
deep into the private life of penetrating conclusions
and possibly detailed personality makes and motion
profiles, can so far not be assumed without further
assume that the use of this data generally less
important than a content-based telecommunications
(to query the old law, see . BVerfGE 107, 299 <322>).
Rather, the use of such data can only be regarded as
proportionate if it is particularly high-level public
affairs. The use of the data is therefore paramount for
the Protection of Legal important tasks into
consideration, that is imposed for crimes that threaten
the outstanding important legal rights or to prevent
threats to such legal rights.
228
a) For the prosecution, it follows that a retrieval of the
data at least the reasonable suspicion presupposes
certain facts by a serious crime. What crimes should
be covered accordingly, has the legislature finally
established with the obligation to store data. He
29
comes here to an area of discretion. He can either
draw on existing catalog or create a separate catalog,
about the offenses for which the communication
traffic are particularly important to capture. The
qualification of a crime as serious but will be in the
criminal law provisions - in particular about whose
penalty - finding a objectified expression (see
BVerfGE 109, 279 <343 ff, especially 347 f.>). A
general clause or only the reference to major criminal
offenses ranging from no other hand.
229
About the abstract definition of a relevant crime
catalog addition, the legislature must ensure that
recourse to the precautionary stored
telecommunications traffic is allowed only if in case
the wanted criminal offense seriousness (see
BVerfGE 121, 1 <26>; to serious criminal offenses
significance see BVerfGE 107, 299 <322>;
particularly serious crime within the meaning of Article
13 paragraph 3 GG see BVerfGE 109, 279 <346>)
and the use of the data is proportionate.
230
b) The security is to use the data in question to limit
equally effective. to open the data access by
reference to catalogs of certain crimes, the prevention
of which is to serve the use of data (see BVerfGE
122, 120 <142>), is not an appropriate control
technology. She takes the requirements for the
degree of legal protection risks its clarity and leads to
uncertainties in the event where even the offenses
themselves mere preparatory acts and threats of
legal protection under punishment. Instead, offer to
take the law directly relating to the legal rights to
justify their use of these data is to protect, and the
intensity of this threat of legal protection that must be
achieved as a threshold for intervention of this. Such
a rule reflects the character of the security as of legal
protection and guarantees a direct connection to the
ultimate goal, is to justify the encroachment on basic
rights.
231
The balance between the weight leads to in the
storage and use of data underlying the intervention
and the importance of effective security to ensure that
a release of precaution saved telecommunications
traffic only to counter threats to life or liberty of a
person for the stock or the security of the Federation
or a country or may be permitted to defend against a
common threat (see BVerfGE 122, 120 <141 et seq).
The legal basis for authority in this regard must be at
least actual evidence of a concrete threat to the
protected legal interests require. This requirement
means that sufficient general assumptions or
empirical propositions not to justify access to the
data. Rather, certain facts must be established that
carry the prognosis of a concrete danger. It requires
that regard a situation in which, in case there is a
reasonable probability that in the foreseeable future
without government intervention caused a damage to
the protected goods of the standard by certain
persons. The relevant observations of the Senate
regarding the requirements for online searches apply
here accordingly (see BVerfGE 120, 274 <328 f.>).
The real danger is determined by three criteria: the
individual case, the proximity of the transformation of
a hazard in an injury, and the reference to individual
persons as a polluter. The query of data stored as a
precaution, however, can already be justified if they
are not yet possible to determine with reasonable
probability that the risk occurs even in the near future,
if certain facts point to an individual in imminent
danger for a supremely important right. The facts
have to admit to a conclusion as to the at least one of
its kind for concrete and time-foreseeable event, on
the other, that certain persons will be involved, at
least as much about their identity is known that the
measure is targeted against them and to them can be
concentrated. In contrast to the weight of the
fundamental intervention is not sufficiently taken into
account when the actual interference event is still
largely moved in the advance of a not foreseeable in
detail specific threat to the protected goods of the
standard.
232
c) The constitutional requirements for the use of the
data security apply to all appropriations intervention
with preventive purpose. They are thus also for the
use of information by the intelligence services. Since
the interference is through the intervention in all these
cases for the parties concerned the same, there is no
reason to regard these requirements
behördenbezogenen differentiations, such as
between police and other preventative work with
authorities responsible authorities such as the
Constitution. That police and Constitution authorities
various functions and powers have and make in the
follow-up with different depth of intervention can be,
for the weighting of the use of precautionary area-and
long-term stored telecommunications traffic generally
irrelevant (see BVerfGE 120, 274 <329 f.>) . While
appropriations can discriminate between the various
authorities with preventive tasks before the
Constitution endure (see BVerfGE 100, 313 <383>,
120, 274 <330>). However, the legislature is also in
the regulation of various powers of security agencies,
whose task is to advance education, subject to the
constitutional requirements stemming from the
proportionality principle (see BVerfGE 120, 274 <330
f.>). These result in this case to provide that both in
terms of legally protected rights as well as to the
threshold of intervention to be considered this special
demands on the data are used.
233
There is no reason why these requirements should
not apply for the completion of the intelligence. While
limiting the role of intelligence in principle to the
collection of information for informing the government.
30
This reduces the weight of the intervention so far,
when it connects to the individual citizens about the
danger of being observed is not beyond the danger of
car related thereto further action. At the same time is
reduced thereby, but also the weight to justify such
intervention, but by mere information the government
can not legally protected injury to be prevented. This
is possible only by action taken by the competent
security authorities, the constitutional limitations on
the use of data should not be undermined by further
use of powers in the run. A particular burden to the
citizens impact of such interventions is, moreover,
that not only the respective intervention in the secrecy
of telecommunications, as such, covered generally
happens, but practically carried the entire activities of
the intelligence secret. Powers of such services
nationwide as a precaution for use of stored
communication traffic to promote a feeling of
uncontrollable being observed in a particular manner
and develop sustainable intimidation effects on the
freedom of perception.
234
The Senate does not deny that this would eliminate
the use of the stored communication traffic as a
precaution on the part of the intelligence services in
many cases. However, this is in the nature of their
duties as the run information and does not constitute
a constitutionally acceptable reason for the
drawbacks of the proportionality principle resulting
conditions for engagement of the present species
(see BVerfGE 120, 274 <331>).
235
be d) The limitation of the data used for particular
purposes must be ensured for the use of data for
retrieval and transmission to the authorities and
retrieving flanked procedurally. It is to ensure by law
that the data will be evaluated immediately after
delivery and, if they are irrelevant for purposes of the
survey, are deleted (see BVerfGE 100, 313 <387 f.>).
Moreover, it is necessary to provide that the data will
be destroyed after it for the specified purposes are no
longer necessary, and that purpose a log is produced
(see BVerfGE 100, 313 <362>, 113, 29 <58>).
236
The telecommunications traffic lose their protection
mediated by Article 10 GG is not the fact that already
has a government agency becomes aware of them.
240
a) The conditions of the constitutionally acceptable
use of data obtained through such storage conditions
fall within the transparency. As far as possible must
be done using the data open. Otherwise, it always
requires at least a subsequent notification of
individuals. Failing this exceptionally well, requires a
judicial decision concerning non.
241
aa) A precautionary anlasslose retention of all
telecommunications traffic data for six months is one
reason such a serious intervention, because it can
cause a feeling of perpetual Überwachtwerdens they
allowed in an unpredictable way deep insights into
the private lives without the use of the data for the
citizens is directly felt or seen. Individuals do not
know what know what state authority over him, but I
know that the authorities many, even highly individual
can know about him.
242
The legislature needs to diffuse threat that can
receive the data thereby, absorb through effective
transparency rules. Rules for informing the persons
concerned or of use of data collection are generally of
the fundamental instruments of data protection basic
rights (see BVerfGE 100, 313 <361>, 109, 279 <363
f.>, 118, 168 <207 f.>; 120, 351 <361 f.>). The use of
the extensive and varied collections of meaningful
data precaution anlasslosen telecommunications
traffic data storage requirements are placed high so
far. You have to take the task of reducing to one from
the ignorance of the actual relevance of the data
resulting threatening, unsettling speculation counter
and to establish the subjects the opportunity to put
such measures in the public debate. On the other
hand, such requirements also from the imperative of
effective judicial protection under Article 10 paragraph
1 GG in conjunction with Article 19 paragraph 4 GG
are derived. Without the attention of those affected
neither illegality of the use of administrative data nor
any rights for cancellation, rectification or satisfaction
claim (see BVerfGE 100, 313 <361>, 109, 279
<363>, 118, 168 <207 f.>; 120 , 351 <361>).
243
bb) To the requirements of transparency is one of the
principle of openness of the collection and use of
personal data. The use of the data without the
knowledge of the person concerned is constitutionally
permissible only if it is otherwise frustrate the purpose
of the investigation, which is used for data retrieval.
For the security and the exercise of the functions of
the intelligence services, the legislature must accept
this principle. In contrast, comes in the context of law
enforcement also an open collection and use of the
data into account (see § 33 para 3 and 4, Code of
Criminal Procedure). Investigative measures to be
here in part carried out otherwise with regard to the
accused and in his presence (see, for example, § §
102, 103, 106 Code of Criminal Procedure).
Accordingly, the parties before the query or sending
its data to be notified in principle. A secret use of the
data may only be provided if it is arranged in
individual cases and judicial.
244
As far as the use of data is done in secret, the
legislature has the duty to provide at least one
subsequent alert. This must ensure that those to
31
which a data query - whether as suspects, or third
parties Polizeipflichtige - directly related, has put at
least in retrospect, in principle, are having.
Exceptions may provide balance in the legislature
with constitutionally protected legal interests of third
parties. However, they are strictly necessary to the
limit (see BVerfGE 109, 279 <364>). Possible
exceptions to the notification obligations in connection
with law enforcement, for example, if the knowledge
would result in breaching the secrecy of
telecommunications to the fact that this fails its
purpose if the notice can not be done without risk to
life and limb of a person or if their overriding interests
an affected person would hold, perhaps because of
the notification of a measure which has had no further
consequences, the fundamental intervention would
have deepened (see BVerfGE 100, 313 <361>, 109,
279 <364 et seq). If there are compelling reasons
which also exclude a subsequent notification, this is
to confirm a judicial and examine at regular intervals
(see BVerfGE 109, 279 <367 f.>). Correspondingly, it
requires a refinement of the notification obligations
also with regard to the use of data for security
purposes or functions of the intelligence.
245
not constitutionally necessary in contrast, are similar
to strict notification requirements in relation to people
whose communication traffic were also detected only
by chance and not even the focus of regulatory action
were. Such party may exist in the analysis of
telecommunications traffic on a large scale, without
the short-term disclosure of their data leave traces or
consequences for the person concerned must have.
A notification is to deepen them in case the surgery
rather (see BVerfGE 109, 279 <365>; BVerfGK 9, 62
<81>). In these cases, a notification can be omitted in
principle even if the parties were not significantly
affected by the measure and assume that they have
no interest in the alert. One requires judicial
confirmation of this decision consideration of it.
246
b) The relative configuration of a precautionary saving
the communication traffic and their use requires
further ensuring an adequate and effective legal
sanctions.
247
aa) To ensure effective legal protection is a query or
submission of such data in principle, be placed under
court reservation.
248
According to the jurisprudence of the Constitutional
Court, may be constitutionally necessary preventative
control by an independent body with investigative
actions that cause a serious encroachment on basic
rights. This is especially true if the fundamental
operation in secret and is for the person concerned is
not directly visible (see BVerfGE 120, 274 <331>).
For the query and transmission of
telecommunications traffic, this may be the case.
Given the weight of the inherent in this procedure, the
scope of the legislature reduced the effect that such
measures are generally placed under the reservation
of a judicial order. Judges may, because of their
personal and material independence and its exclusive
commitment to the law the rights of the person in
case the best and safest true (see BVerfGE 77, 1
<51>, 103, 142 <151>, 120, 274 <332> ). An
exception applies under Article 10 paragraph 2
sentence 2 Basic Law for the control of interventions
in the telecommunications freedom by the intelligence
services. This can serve as a preventive judicial
review which - also specifically related to the
particular measure - review by a member appointed
by the People's representative body or subsidiary
body effects (see BVerfGE 30, 1 <21>).
249
The legislature has to connect to the commandment
of preventive judicial review in a specific and
normenklarer form with strict requirements on the
content and the reasoning of the court order (see
BVerfGE 109, 279 <358 f.>). From this it also follows
the requirement of a sufficiently substantiated
justification and limitation of the query the desired
data, which allows the court only to exercise effective
control (see BVerfGE 103, 142 <160 f.>). Only on this
basis can and must be formed independently of the
Court ordering a verdict on whether the requested
use of the data complies with the statutory
requirements. In addition, careful examination of the
triggering conditions is including in particular the
statutory threshold for intervention. The order of the
court decision must be justified in content. Moreover,
the data to be transmitted in accordance with the
principle of proportionality should be indicated
sufficiently selective and in a clear way (see BVerfGE
103, 142 <151>), so that service providers must not
make its own substantive examination. This may only
be based on clear arrangements for transmitting the
required and justified.
250
The effectiveness of control, it also means that the
data resulting from the arrangement of the
telecommunications company will be filtered as
speicherungsverpflichteten third party and transmitted
to the authorities is not a direct access will be opened
to the data. In this way, the use of the data on the
interaction of different actors linked to each other and
is thus involved in controlling decision-making
structures.
251
bb) From constitutionally necessary is also initiating
the legal procedure for subsequent monitoring of the
use of the data. If an interested party prior to the
operation had no opportunity to put up in the courts
32
against the use of its telecommunications traffic to the
weir is to address a judicial review to open later.
252
cc) Finally, is a proportionate design requires
effective sanctions for violations. Would also seriously
injured as a result of the telecommunications secrecy
remain unpunished, with the consequence that the
protection of personal rights, even if he had found in
Article 10 paragraph 1 GG is a particular expression,
would wither away, given the intangible nature of this
law (see Federal Constitutional Court, decision of the
first chamber of the First Senate of 11 November
2009-1 BvR 2853/08 - Juris, para. 21; BGHZ 128, 1
<15>), this would contradict the obligation of public
authorities, which detail the development of his
personality to allow (see BVerfGE 35, 202 <220 f.>,
63, 131 <142 f.>; 96, 56 <64>) and to protect it from
threats to privacy by third parties (see BVerfGE 73,
118 <210>; 97, 125 <146>, 99, 185 <194f>; BVerfGK
6, 144 <146>). This may be the case if improperly
obtained data should be widely used freely or
unauthorized use of the data for lack of regular
physical damage would be without one of satisfaction
of stakeholders serving compensation.
253
The legislature has broad discretion in this respect
but one. In particular, it can take a look at the extent
to which such arrangements fit into the overall
scheme of criminal procedure law or under the liability
law. In that regard, he must also consider that in the
event of violations of personal rights under applicable
law already bans exploitation both on the basis of an
assessment (see BVerfGE 34, 238 <248 et seq, 80,
367 <375 f.>; 113, 29 <61 >; BVerfGK 9, 174 <196>;
BGHSt 34, 397 <401>, 52, 110 <116>) and a liability
for material damage can be justified (see BVerfGE
34, 269 <282, 285 f.>; BVerfGK 6, 144 <146 f.>;
Federal Constitutional Court, decision of the first
chamber of the First Senate of 11 November 2009-1
BvR 2853/08 - Juris, para. 21; BGHZ 128, 1 <12>).
For the decision whether we need to sound more
stringent regulations, it is therefore not prevented
from observing, first, whether the specific gravity of
the infringement of privacy, which in the unauthorized
acquisition or use of this is regularly in question are
data already on the basis of current the right of the
law in the constitutionally required way from being
met.
254
4th Less stringent constitutional provisos apply a
precautionary measure only indirect use of the data
stored in the form of official information regarding
claims against the service by the subscriber specific
IP addresses that they have to identify with the use of
the stored data. The creation of such an inquiry is
independent of limiting claims of legal or criminal
Proceeding catalogs total admissible as the query
and use of telecommunications traffic itself

255
a) For information on the holders of certain IP
addresses to be used for the identification of
precaution must be stored communication traffic must
not be given by the otherwise constitutionally apply to
the use of such data very strict conditions.
256
Of significance for this is the one that the authorities
themselves, no knowledge of the received data to be
stored as a precaution. The authorities call in the
context of such information from the claims do not
precautionary anlasslos stored data itself, but only
receive personal information about the holder of a
particular port, which was determined by the service,
using this data. It remains the strength of the data is
strictly limited: the use of precautionary data alone
leads to the inquiry, which was declared under
Connection Owner of an already known about
otherwise determined IP address on the Internet. A
ruling has its formal structure after a certain similarity
to the query of the holder of a phone number. Its
cognitive value remains circumstantial. Systematic
fishing expeditions over a longer period, or the
creation of personality and movement profiles can not
be achieved solely on the basis of such information.
257
Is relevant to the other, that such information is used
for only a small portion of fixed from the outset of
data, its storage could be arranged by themselves
with much lower requirements. A dynamic storage
only the necessary information for such Internet data
to identify IP addresses would have a much less
stressful than the weight of almost complete retention
of data from all telecommunications links. The
combination of these factors it appears that apply to
the use of telecommunications traffic as a precaution
saved otherwise applicable requirements for such
information is not alike.
258
b) However, the justification of administrative claims
information to identify IP addresses of considerable
importance. With it, the legislature has one of the
conditions of communication on the Internet and limits
the extent of their anonymity. On their basis, in
connection with the systematic storage of Internet
data to a large extent the identity of Internet users are
determined. Where can individuals who believe
themselves harmed on the Internet, register the
appropriate IP addresses and display or report to
determine the extent of the authority itself IP
addresses assigned to these specific subscribers,
and the underlying communication processes are
individualized with considerable probability.
259
The assignment can be an IP address to a
Connection Owner of the weight also produces for the
33
person concerned, despite a certain similarity to the
identification of a telephone number not be equated.
Telephone numbers are permanently assigned as
identifiers exchanged between users, so that a
search of the holder may also independent of specific
telecommunications acts. contrast, was one contains
information about the Connection Owner of a
dynamic IP address is also needed in the information
used and by which that port from that IP address at a
particular time. In addition, the phone number to
private suppressed without difficulty, while the IP
address can be disguised in principle only with the
use of anonymizing services. Also, the possible
relevance of a query personality of the owner of an IP
address other than the owner of a phone number:
even the extent of her contacts, which are each made
by calling new website, it is more meaningful than a
phone query. Also, the knowledge of a contact with a
website to another substantive meaning: Since the
content of Internet sites other than that in a phone
conversation spoken word electronically locked and
longer can be called again, can be with her
reconstruct many reliable, with which the subject of
the communicating set apart has. The
individualization of the IP address as the "phone
number of the Internet are" at the same time
revealing the content of communication. The force of
the distinction between external telephone call
connection data and call content dissolves here.
individualized If the visitor to a specific website using
the information about an IP address, you know not
only who he had contact, but usually knows the
contents of the contact.
260
Of course, conversely, an increased interest in the
ability to communication links in the Internet of legal
protection or to safeguard the legal system to assign
the respective actors. Given the increasing
importance of the Internet for the most diverse areas
and processes of everyday life also increases the risk
of its use for crimes and violations of law in a variety
of Art and the Internet can not form a legal vacuum.
The ability of an individual assignment of Internet
contacts with violations of some significance is
therefore legitimate for the legislature. Insofar as
similar information from the service under the current
technical conditions under which IP addresses mainly
just for the meeting ("dynamic") must be assigned,
telecommunication traffic data are evaluated, thus
throwing this on any fundamental concerns. Nor can
the legislature to ensure reliable assignment of these
addresses over time, the provision of the relevant
data or provide a high level of reliance on stored data
is far from the service provider. It has a margin of
discretion here.
261
c) Accordingly, should the legislature of such
information independent of limiting legal rights or
crimes catalogs for the prosecution of crimes allow for
the security and the performance of duties of the
intelligence on the basis of the general
fachrechtlichen intervention appropriations (see Bock,
in: Geppert / Piepenbrock / contactor / Schuster,
Beck'scher comment to TKG, 3rd edition 2006, § 113
para. 7; Graulich, in: Arndt / Fetzer / Scherer,
Telecommunications Act, 2008, § 113 para. 8).
Regarding the intervention thresholds, however,
ensure that the information will not be caught out of
the blue, but only upon a reasonable suspicion or
may be the beginning of a concrete danger to fact-
case basis. The requirement of a based on factual
evidence in the real risk is paid for the intelligence
services as well as for all to respond to threats to
public order and safety authorities. The legal and
factual basis of appropriate information requested
must be recorded. A judge must be reserved in
contrast to similar information not be provided.
262
The considerable weight of the interference of such
information allows not, however, these generally and
unconditionally be allowed in order to monitor or
prevent any irregularities. The removal of anonymity
on the Internet requires at least a legal interest
affected, by the law and is otherwise a highlighted
weight attached. This includes similar information for
the monitoring or prevention of offenses is not
complete. It must be so far but in order - even in the
case - particularly important Offences act, which must
appoint the legislature explicitly.
263
Also, there is no reason to withdraw for the
identification of IP addresses the principle of
transparency (see above CV 3). The person
concerned, who can go out in the rule about using the
Internet anonymously, has in principle the right to
know that and why this anonymity was lifted.
Accordingly, the legislature has at least provide
notification obligations as and when thus the purpose
of the information will not be frustrated or otherwise
overwhelming interests of third parties or the parties
themselves do not allow this. As far as waiver of
notice in accordance with relevant legal regulations,
exceptionally, the reason is to make this record. One
requires judicial confirmation of the waiver of
notification is not in contrast.
264
5th The constitutionally required to ensure data
security, and a proportionality standard possible
normenklaren limit the use of data is an integral part
of the arrangement of the storage obligation and
therefore the obligation that imposes the obligation
incumbent federal legislators. In contrast, the
responsibility is directed to the creation of call
provisions themselves and for the design of the
transparency and legal protections under the
respective expertise.
34
265
a) Where are to be settled in connection with the
obligation of service to a precautionary anlasslosen
retention of communication traffic data security
issues, this responsibility is an integral component of
the storage requirement and the legal consequences
associated herewith the federal government under
Article 73 para 1 No 7 GG . This, in addition to the
arrangements for security of stored data, the rules are
part of the security of the transmission of data and
this case to ensure the protection of the trust relations
(see above CV 1 and CV 2 e).
266
The Federation is also responsible also for ensuring
the constitutional requirements of a relevant and
sufficiently precise limitation of the uses of the data,
to be pursued with the storage. The reason has to
save this irreducible in the constitutional context of
data storage and use, in line with established case
law of the Federal Constitutional Court: data may
advance only on specific, sector specific, precise and
normenklar specified purposes, so that a reasonable
assurance already in the storage, that the data be
used only for purposes that justify the weight of data
storage. A lock can not be justified in the abstract, as
such, but only insofar as it serves sufficiently weighty,
specifically designated purposes (see BVerfGE 65, 1
<46>, 118, 168 <187 f.>). In contrast, it is
inadmissible, regardless of such purposes to create a
pool of data on stocks, the use according to need and
leave the political discretion of the subsequent
decision of various government bodies remains. In
such a case, the constitutionality of the store could
lack of sufficiently predictable and limited purposes at
the time of lying in the store procedure not yet be
assessed. Their significance for the citizens would be
neither predictable nor limited in accordance with the
proportionality principle. This material combination of
storage and use of the data as a key link between
intervention and may also justify the interplay of
federal and state governments are not broken. The
competence to provide this link grows, the federal
government under Article 73 para 1 No 7 GG virtue
material connection (see III C 2).
267
The restrictions to the federal government in
connection with the storage arrangements
accordingly be taken to determine the qualifying
conditions for the use of data for purposes of law
enforcement, security, or threat prevention through
intelligence belongs to the developed above provisos.
Again, the necessary regulations are to maintain the
allocation for the further use of the data, particularly in
the form of identification and logging requirements.
268
b) In contrast, the federal government depends on the
arrangement of the storage requirement and the
responsibility not simply about whether and how
much may be made to the actual data in the context
of the purposes specified by him. The adoption of
rules that govern the data call themselves, is not
fundamentally a federal matter, but depends on the
general legislative powers. Thereafter, the
authorization will not be to retrieve the data based on
Article 73 para 1 No 7 GG, but is based on each of
those skills to create standards which determine the
legislation for the use of objective data with the tasks
(see BVerfGE 113 , 348 <368>, 114, 371 <385>). In
the area of security and the role of intelligence,
responsibility so widely among countries. Other than
ensuring the constitutionally required limitation of the
uses that must be regulated uno actu with the storage
for the data protection clamping of intervention and
justification, and may require more than just call
authorization and the protection of other constitutional
requirements for the design of the data used in
particular the arrangements for notification of
individuals and ensuring effective judicial subsequent
legislative acts of the countries left to stay. The
responsibility for the constitutionality of these
regulations require that these so far directly
themselves
VI.
269
The challenged regulations do not meet these
requirements. While § 113a does not contradict the
Act if only the fundamental right to protection of
telecommunications secrecy under Article 10
paragraph 1 GG, because the range of the storage
requirement would be in accordance with § 113a para
1-7, 11 TKG disproportionately from the outset.
However, the rules relate to data security, for the
purposes and to ensure transparency of data use, not
to redress the constitutional requirements. This lack
of the proportionality principle corresponding
development of the system as a whole. § § 113a,
113b and TKG § 100g Code of Criminal Procedure to
the extent that the retrieval allowed under § 113a of
the Act to be stored are therefore compatible with
Article 10 paragraph 1 is not GG.
270
1st TKG § 113a is unconstitutional not only because
of its reach. The legislature may judge ordered him
storage requirement, extending anlasslos accordance
with paragraph 1-7 to close to all traffic of publicly
available telecommunications services, than for the
more effective law enforcement and risk prevention,
appropriate, necessary and proportional in the strict
sense (see above C IV). Despite their reach is the
regulation on the volume of data collected her limited
nor sufficient. The content of telephone
conversations, faxes and e-mails may, as § 113a
Paragraph 8 clarifies the Act expressly saved as
much as the Internet or service provider, which has
35
contacted a user on the Internet. Also, the legislature
pursuant to § 113a para 1, 11 TKG six months and a
determined partake at subsequent cancellation
deadline of one month still a constitutionally
acceptable storage time. Also can not currently find
that the objective of the scheme in conjunction with
other regulations on or amounts to create a generally
comprehensive data collection to minimize any
reconstructability activities of citizens. Important
insofar as the validity of the data protection legislation
otherwise widely permeating principle of data
economy and numerous deletion obligations with
those of the legislature to prevent the occurrence of
avoidable data collections generally are looking for.
Crucial to this assessment are particular about the
extent § § 11 ff TMG, which basically require the
service provider after the Telemedia Act for the
deletion of not accounting for the required data (see §
13 para 4 No 2, § 15 TMG) and also to avoid such
private incentives that internet content is recorded in
general commercial data collections and thus
reconstructed remains. TKG § 113a can thus not be
understood as an expression of general public data
for purposes of law enforcement preparedness and
risk prevention, but despite its vastness a limited
exemption that is trying the special challenges of
modern telecommunications for law enforcement and
security into account.
271
2nd In contrast, it lacks the constitutionally required
for such data collection to ensure a very high safety
standards. § 113a para 10 TKG couched in that
respect only the vague permanent duty, through
technical and organizational measures to ensure that
access to the stored data is possible only by specially
authorized persons, and refers only to the otherwise
in the telecommunications sector in general due
diligence. This lack of a requirement that the
particularly high standards and guarantees the
security of comprehensive and meaningful data
collection in accordance with § 113a TKG account.
The Case for the referenced § § 88 and 109 of the
Act to ensure such very high safety standard does not
allow it, according to its wide scope, multiple
relativities. This applies in particular to § 109 of the
Act. Thus, under § 109 paragraph 1 TKG make any
service arrangements or other appropriate technical
measures to protect the secrecy of
telecommunications and the telecommunications and
computer systems against unauthorized access. To
determine the appropriateness of use is made to §
109 para 2 sentence 4 of the Act (see Klesczewski,
in: Säcker, Berliner Kommentar zum TKG, 2nd
edition, 2009, § 109 para. 12). After the measures are
appropriate if the necessary technical and economic
burden is proportionate to the importance of the
protected rights. Based on the above-developed
standards, thus the specific requirements for the
protection of stored data in accordance with § 113a
TKG are not sufficiently guaranteed. The legally
prescribed standard of "reasonable technical
precautions or other measures required" only to use
the state of technological development "(§ 109 para 2
sentence 2 of the Act; Klesczewski, in: Säcker,
Berliner Kommentar zum TKG, 2 ed, 2009, § 109
para. 13), and qualifies the security requirements in
ways that remain undetermined in the general
economy considerations-case basis. Moreover,
further specification of this standard remains the
choice of the individual telecommunications service
providers, which must in turn provide their services
under the conditions of competition and cost
pressures.
272
A detailing of these requirements is not ensured in
the form of ordinances or by the supervisory
authorities. In particular, § 110 TKG not guarantee
the validity of reasonable safety standards. Although
in the context of this standard to be created by
subordinate bodies (§ 110 para 2 and 3 of the Act)
aspects of data security can be also determined.
However, these - primarily determined by technical
objectives - Standard contains no substantive
standards in this regard nor does it the aspect of data
security on otherwise. Moreover, two years after entry
into force of the storage requirement of § 113a of the
Act a new regulation which takes account of
adjustment of telecommunications regulation does
not occur. Accordingly, it is also - in December 2009
pursuant to § 110 para 3 sentence 3 of the Act on the
website of the Federal Network Agency published
(see the Federal Network Agency, Official Journal,
2009, p. 4706) - Technical Directive on the
implementation of legal measures to monitor the
telecommunications and information requests for
Traffic (TR-TKÜV) pursuant to § 110 para 3 TKG take
effect until one year after this adjustment (Index 1
<Regelungsbereich> TR-TKÜV, Part B, TR-1
<Grundsätzliches> TKÜV).
273
A sufficient security guarantees nor § 109 para 3 the
Act. Although the standard requires that operators of
telecommunications facilities to designate security
officers, and to provide a safety have to present the
Federal Network Agency. Even then, the concept
when he change the underlying "facts" to adapt and
resubmit. However, so that a particularly high
standard of safety is not guaranteed reliable. Shall
record the provision alone operator, but not the entire
target group of the Telecommunications Act § 113a,
which also includes other service providers. Also
refers to § 109 para 3 TKG material only to the
insufficient requirements of § 109 para 1 and 2 of the
Act. It is also not guaranteed in sufficiently
normenklarer form a continuous and controlled
adjustment of the safety standards at the state of
technological development. Is not clear so far
whether § 109 para 3 sentence 4 of the Act also calls
for an adjustment to the technical development of
36
protective and evolving legal safety standards. In any
case, lack of commitment to a periodized continuation
of the security concept, which could enable an
effective control in this regard.
274
The lack of adequate safety standards in the
telecommunications law can compensate also § 9
BDSG not in connection with the relevant schedule.
Notwithstanding their sometimes abstract high
standards remain the standard that is applicable in
any case, is subsidiary (see Fetzer, in: Arndt / Fetzer
/ Scherer, Telecommunications Act, 2008, before §
91 para. 10; Klesczewski, in: Säcker, Berliner
comments TKG, 2nd edition, 2009, § 91 para. 15),
too general to draw together in a sufficiently specific
and reliable way, the very high safety standards to
ensure the Telecommunications Act § 113a for data
to be stored.
275
This has created a very high safety standard for §
113a to TKG data to be stored is not guaranteed and
normenklarer in binding form. Neither the
Speicherungspflichtigen the expert of the
respondents in the present method as the core
elements of these instruments (separate storage,
asymmetric encryption, four eyes "principle,
combined with advanced methods for authentication
for access to the keys, audit logging of access and
deletion) set enforceable still other measures must be
imposed on them to ensure a comparable level of
safety. Also, there is a lack of a balanced system of
sanctions, the violation of data security no less weight
attaches as violations of the storage requirements
itself is the fines for failure to comply with storage
requirements significantly wider than that for the
breach of data security (§ 149 para 2 sentence 1 in
conjunction with § 149 para 1 No 36 and 38 of the
Act). The constitutional requirements for the safety of
data collection, as it is created by the Act § 113a is
sufficient to applicable rules, not with it.
276
3rd The rules for the transmission and use of the data
meet a set of sentence pursuant to § 113b 1 TKG not
the constitutional requirements.
277
a) incompatible with the developed from the principle
of proportionality standards are the first schemes to
use the data for law enforcement.
278
aa) § 113b sentence 1 No. 1 Telecommunications Act
in connection with § 100g Code of Criminal
Procedure does not meet the very strict conditions
under which alone is allowed under § 113a TKG
stored data be used. It is true that the legislature with
these regulations in a differentiated and their
interaction under Article 74 paragraph 1 No. 1 and
Article 72 paragraph 1 GG made final destination of
the data used for law enforcement. The legislature
does it for the use of the data, however, meet similar
requirements as previously for the collection of
telecommunications traffic data were considered by
the service provider may save in accordance with
their operational and contractual requirements in a
more limited extent and for the individuals by contract
partially avoidable pursuant to § 96 TKG . This
reflects the very serious operation, which is the
precaution anlasslosen and systematic data of § 113a
Telecommunications Act does not sufficiently
account.
279
Already § 100g para 1 sentence 1 No. 1 Code of
Criminal Procedure does not guarantee that may be
general and also in individual cases, only serious
crimes rise to a collection of appropriate data, but can
- regardless of a final catalog - generally suffice major
criminal offenses . Certainly remains § 100g para 1
sentence 1 No. 2, sentence 2 StPO back behind the
constitutional provisos, by whatever their gravity any
offense committed by means of telecommunication in
accordance with a general consideration as part of a
proportionality test can suffice as a possible source of
a data query . With this scheme, the stored data in
accordance with § 113a TKG be of practical use in
relation to all offenses. Your use loses view of the
ongoing importance of telecommunications in
everyday life exceptional. The legislature is limited to
not place the use of data for the prosecution of
serious crimes, but goes about this - and thus also on
the European law specified purpose of data storage,
limited in their turn solely on the prosecution of
serious crimes without the inclusion of risk prevention
- far out. Although the use of this data, especially for
the prosecution of crimes committed by means of
telecommunication to be very useful, so harder to
restrict the Enlightenment, in some cases or may
even prevent. It is, however, in the nature of the
guarantee of Article 10 paragraph 1 GG and related
requirements of proportionality, that not every
measure that is useful for law enforcement and in
some cases also may be necessary to constitutionally
permissible. Conversely, in consequence of this the
relevant requirements of telecommunications in the
area of lesser offenses do not total to the legal
vacuum: the information required under § 113 para 1
of the TKG, the legislature - even under the indirect
use of the stored data according to § 113a TKG - for
the enlightenment provide for all offenses (see CV 4
c). Similarly, thereby recourse pursuant to § 100g
Code of Criminal Procedure is on otherwise than in
accordance with § 113a TKG stored communication
traffic possible.
280
bb) No constitutional requirements § 100g Criminal
Procedure Code continues to the extent that it allows
in principle a data retrieval even without knowledge of
37
the person concerned (§ 100g para 1 sentence 1
Code of Criminal Procedure). The constitutional
requirements for transparency in the use of data allow
a secret survey of the stored data according to §
113a Telecommunications Act only if it is arranged on
compelling reasons required by law closer to
concretizing and judicial.
281
cc) The design of the notification requirement is not
sufficient in all respects by the developed above
provisos. However, the scope of the proposed
notification requirements, as such, no constitutional
objections is exposed. § 101 paragraph 1, 4 and 5,
Code of Criminal Procedure provides, in line with the
jurisprudence of the Constitutional Court (see
BVerfGE 109, 279 <363 et seq), differentiated
regulations, the principle of a subsequent notice to
the affected constitutionally viable in compensation to
bring in most exceptional case conflicting interests.
Not open to criticism in that regard in particular, that
are concerned to notify, on which the data query is
not related, in accordance with § 101 paragraph 4,
sentence 4 Code of Criminal Procedure is not in
every case, but only in accordance with an
assessment. As part of this assessment can and
should the interests of those affected indirectly, due
account should be taken into account.
282
may be insufficiently contrast, the rules for judicial
review to cases in which notification omitted. § 101
paragraph 6 Code of Criminal Procedure provides for
judicial review only for the deferral, the notice referred
to in § 101 paragraph 5 Code of Criminal Procedure,
but not for the waiver of notice pursuant to § 101
paragraph 4 of Criminal Procedure. This reflects the
high priority of alert for a transparent use of the stored
data according to § 113a Telecommunications Act
does not sufficiently account. Where a data query
relates directly to traffic of a particular person, may be
waived its subsequent notification only after a judicial
review of the relevant exceptions apply. At one such
control is lacking in those cases should be required in
those of a notice pursuant to § 101 paragraph 4
sentence 3 Code of Criminal Procedure because the
overwhelming concerns of an affected person.
283
dd) In contrast, judicial review of the data query and
data use is granted even in a manner consistent with
the constitutional requirements. The collection of
stored data in accordance with § 113a
Telecommunications Act requires, according to §
100g para 2 sentence 1, § 100b paragraph 1
sentence 1 of the Code of Criminal Procedure order
by the judge. The court order authorized the
authorities not to a direct access to the data, but
requires the service provider own this as an interim
arrangement according to the requirements of filtering
out and reported. Furthermore, there is according to §
101 paragraph 1, section 7, first 2-4 Code of Criminal
Procedure, the possibility of subsequent judicial
review of the legality of bringing about the action.
That these laws guarantee an effective remedy is not
total, is not apparent.
284
Not regulated sufficiently normenklar however, the
statutory provisions regarding formal requirements for
the judicial order. § 100g para 2 in connection with §
100b para 2 Code of Criminal Procedure lays down
minimum requirements for a decision by formula, but
otherwise the general duty to give reasons applies to
decisions under § 34 of Criminal Procedure. The
legislature should consider a new system, whether it
would be helpful to the strict requirements of a
statement of reasons of judicial orders (see BVerfGE
103, 142 <151>, 107, 299 <325>, 109, 279 <358 f.>)
by to give a special and differential provision reprint.
In any case, is to ensure by law that the volume of
data to be transmitted in the order in a manner
consistent with the proportionality principle sufficiently
selective and for the service is clearly described.
85
b) The challenged regulations do not meet the
constitutional requirements with a view to extracting
and using the stored data according to § 113a TKG
for security and for the functions of the intelligence. §
113b sentence 1 No 2 and 3 of the Act meets the
requirements for a reasonable limitation of the uses of
his investment by not already. The federal legislature
is content here with a sketch in just generalizing way,
the task fields for which a data retrieval should be
possible, without specifically naming the uses. He
leaves the concrete rather later legislation, in
particular the legislation by the states. He is his
responsibility for the constitutionally required
limitation of the uses listed in no. If he orders the
storage of telecommunications traffic, it is up to him at
the same time, the necessary constitutional
justification for their uses, intervention and the
purpose to ensure the necessary follow rules set out
binding. Such provisions do not contain a clause §
113b Act. Rather, the obligation of service for
preventive retention of all telecommunications traffic,
while the release of this data for use by the police and
the intelligence services under nearly the whole task
a set of diverse and unlimited use of open data pool,
to the - only by rough objectives limited - in each case
on its own decisions, the legislature access to federal
and state governments can. The provision of such a
purpose being to open its data pool picks up the
necessary connection between storage and storage
purposes and is not compatible with the Constitution
(see above CV 5 a).
286
Not to criticize other hand, is that in § 113b TKG no
comprehensive regulations on notification obligations
or to judicial review in the event of use of the stored
38
data according to § 113a TKG are included for
purposes of security and the performance of duties by
the intelligence services. Although such rules are
constitutionally indispensable. The federal legislator
was allowed to it with the retrieval of the data related
to the respective schemes are a matter for the
professional laws and leave it where appropriate, by
state laws.
287
c) The refinement of the use of the stored data
according to § 113a TKG is disproportionate since, as
is provided for the transfer of any protection of trust
relationships. At least for a narrow circle of dependent
special confidentiality of communication lines, such a
protection is necessary in principle (see above CV 2 e
at the end).
288
4th Finally, also satisfies § 113b sentence 1 sentence
2 of the TKG, the indirect use of the stored data
according to § 113a TKG for information from the
service provider according to § 113 para 1 provides
for the Act, not in all respects with the requirements of
proportionality.
289
After the above-developed standards, it is subject,
however, no constitutional concerns that legislators in
§ 113b sentence 1 sentence 2 TKG information about
the Connection Owner of certain authorities is already
known IP addresses not covered by the very strict
conditions, for an immediate retrieval of according to
§ 113a TKG stored data must be considered. It is not
objectionable to the extent that, under § 113b
sentence 1 sentence 2 in conjunction with the Act §
113 paragraph 1 TKG such information without prior
judicial authorization for the prosecution of crimes of
all types and generally acceptable for the tasks of
security and intelligence services are . Not quite clear
the scheme is to identify the required intervention
thresholds. In a constitutional interpretation, they can,
however, understood in the sense that § Points 113
paragraph 1 TKG to the relevant specific legislation
interference basis and to access the data at least a
reasonable suspicion pursuant to § § 161, 163 Code
of Criminal Procedure or a specific risk under the
police general clauses requires (see Bock, in:
Geppert / Piepenbrock / contactor / Schuster,
Beck'scher comment to TKG, 3rd edition 2006, § 113
para. 7; Graulich, in: Arndt / Fetzer / Scherer, TKG,
2008, § 113 para. 8). The intervention threshold of
real risk, the provision in a constitutional interpretation
of the intelligence and requests for information be
removed.
290
Also by way of constitutional interpretation can track
any abuse of the provision to circumvent the Code of
Criminal Procedure § 100g are met. § 113b
authorizes a sentence of clause 2, in conjunction with
§ 113 para 1 of the TKG in constitutional
understanding not open to query the authorities to
subscribers, the telecommunications links that are not
known. Rather, he allowed his grounds of the Law
according to the express direction only information on
individuals, the authorities previously known IP
addresses (see Bundestag document 16/6979, p. 46).
The legislature may consider necessary under the
new rules, if he sees an opportunity to clarify this law.
A unconstitutionality of § 113b sentence 1 sentence 2
in conjunction with § 113 paragraph 1 TKG has so far
not evident.
291
In terms of proportionality, largely § 113b sentence 1
sentence 2 in conjunction with § 113 paragraph 1
TKG is the extent that it can be sufficient, generally,
the punishment of offenses for such queries. While
the legislature is in accordance with the above
stipulations developed denied, in principle, similar
information in the most important cases in the area of
the offense right to use (see above CV 4 c). There is
a need for this, however normenklarer of specific
regulations to which it is lacking in this case. § 113b
unconstitutional sentence of a sentence 2 in
conjunction with § 113 paragraph 1 TKG also is also
in so far as there are no rules to a notification of
individuals. Pursuant to § 113 para 1, sentence 4 of
the Telecommunications Act Auskunftsverpflichteten
must safeguard against the person concerned to
disclose, and also by the inquiring authority is no
guarantee notification. This meets the constitutional
requirements for a transparent use of the stored data
according to § 113a TKG not (see above CV 3 a).
292
5th In summary, neither the legal requirements for
data security or the rules enough to use the data
according to § 113b sentence 1 No. 1
Telecommunications Act in connection with § 100g
Code of Criminal Procedure, § 113b sentence 1 No 2
and 3 of the Act and § 113b sentence 1 sentence 2
TKG the constitutional requirements. Thus it lacks the
same time the storage requirement of § 113a of the
Act itself a constitutionally viable justification. The
challenged regulations are generally not compatible
with Article 10 paragraph 1 GG therefore compatible.
VII
293
In contrast, the challenged provisions regarding
Article 12 paragraph 1 GG, where it must be decided
in these proceedings thereon, subject to any
constitutional concerns. The complainant on 4) in a
procedure BvR 256/08 is not affected by the
challenged provisions and the related financial
burden violated their professional freedom.
294
39
1st The imposition of storage obligations relating to
the complainant, at least so far as they also own a
publicly available anonymizing server operates is,
however, an interference with their professional
freedom dar. As a commercial provider an anonymity
service they can rely on the professional freedom
under Article 12 paragraph 1 GG called. The scheme
has objectively berufsregelnde trend. The storage
requirements are addressed to those service
providers who provide public telecommunications
services in the rule for consideration for end-users
(see § 113a para 1, § 3 No. 24 TKG) and therefore to
service providers who offer services in any case
typically for commercial purposes.
295
When the surgery is a professional system. This is
regulated in § 113a TKG a storage and set a phrase
in § 113b 1 TKG a delivery obligation, present
themselves as technical stipulations for the provision
of telecommunications services. Is mistaken,
however, the argument that the storage requirement
to act as an anonymizing services career scheme
because a final anonymity can no longer be offered.
Although a regime of occupation is not only
considered if access is restricted by law to practice a
profession, but even if the meaningful exercise of a
profession is made virtually impossible (see BVerfGE
30, 292 <313>). However, the storage requirement
leads to § 113a para 6 TKG does not mean that
anonymization services generally can not be
operated. The anonymizing services can offer their
users continue to surf without possible identification
of the IP address through a private on the Internet.
They thus allow users to have a static (and hence
open) IP address to hide their identity and protect
other users from hackers or other illegal access.
Repealed the anonymity only to the state authorities,
while even if the strict conditions for the direct use of
stored according to § 113a TKG traffic data, a data
retrieval is an exceptional basis. Therefore only be
held so that customers whose anonymity is against
the interest in these particularly serious cases,
investigating authorities. The offer of a cascade is
thus not a total invalid.
296
2nd The reasoned by the imposition of obligations
storage interference is justified by the Constitution. It
is neither disproportionate nor effort in the technical
terms of the associated financial burden.
297
Interference in the practice of freedom must be
justified by sufficient reasons in the public (see
BVerfGE 94, 372 <390>, 101, 331 <347>, 121, 317
<346>). Basically sound reasons of public policy
sufficient (see BVerfGE 7, 377 <405 f.>, 16, 286
<297>, 81, 156 <189>; established case-law). Here
too, the requirements of the proportionality principle,
which means the intervention must be to achieve the
engagement objectives, appropriate, necessary and
proportionate in the strict sense. These conditions are
fulfilled here.
298
a) The storage and transmission requirements are
also legitimate in terms of invasion, the professional
freedom of the objectives of more effective law
enforcement, security and the role of secret services.
They are based on reasonable grounds that the
public interest for whose support they are suited. A
less intrusive regulation, which is not as effective and
inexpensive for the public sector, is shown. Because
the communication traffic will not occur since the
privatization of the telecommunications sector with
the state, this is in turn to a direct recording is not in
the situation. A production of any connection to the
state, so this makes the storage separates itself,
because of the associated risks both for the
protection of telecommunications secrecy and for the
safety and completeness of the data. Also, the
necessity does not apply to breaches of employment
by the imposition of costs borne or costly obligations
not simply because a financing would be the mission
from tax for individuals of a less restrictive means
(see BVerfGE 81, 156 <193 f.>; 109, 64 <86>). Milder
agents are not those that move only a cost burden
(see BVerfGE 103, 172 <183 f.>; 109, 64 <86>).
299
b) The imposition of the storage requirement has
made to the relevant service providers are typically
not overly burdensome.
300
aa) The storage requirement exceeds the limit of
admissibility, not by the technical effort, they
demanded of the service providers. Since moving to
the relevant service provider in the
telecommunications market, they have already a high
level of technical mastery in the field of
telecommunications data collection, storage and
processing have. These skills have also small
enterprises in this sector. Moreover, at least a
majority under § 113a of the Act is to be stored in any
case by the relevant telecommunications company
saved temporarily for their own purposes. Demanding
organizational requirements to ensure data security
arise not only from the storage requirement of § 113a
TKG, but from the very subject matter of the offered
services of the companies concerned. To that extent
the imposition of specific obligations in accordance
with § 113a TKG not disproportionate in technical and
organizational terms.
301
bb) disproportionate retention requirement is not in
relation to the financial burden on companies grow by
the storage requirement of § 113a of the
Telecommunications Act and subsequent obligations
therein connected therewith as ensuring data
40
security. Report this particular is not because private
companies would thus inadmissible entrusted with the
State. A categorical separation of "state functions"
and "private activities" with the consequence of the
fundamental inadmissibility of enslavement for public
purposes by private individuals on their costs can not
be inferred from the Constitution. Rather, the
legislature has a wide discretion, the obligations of
common interests to ensure it has imposed in the
private course of their work (see BVerfGE 109, 64
<85>). Basically, it can load and measures to
safeguard common interests that are required
regulation as a result of commercial activities, the
relevant market actors to impose in order to integrate
the associated costs in this way in the market and the
market price. The legislator is not confined to private
use only in service when their professional activity
can cause immediate danger or they are directly
regarding these risks is at fault. Rather, so far
reaches a sufficient factual and responsibility
proximity between the occupation and imposed the
obligation (see BVerfGE 95, 173 <187>).
302
Subsequent to this, against the cost burden arising
Speicherungspflichtigen no fundamental objections.
The legislature moved in this way associated with the
storage costs in accordance with the privatization of
the telecommunications sector as a whole in the
market. Just as the telecommunications company of
the new opportunities to use telecommunications
technology to make a profit, they must shoulder the
costs for the containment of the new security risks
associated with telecommunications, and process in
their prices. The obligations imposed on companies
are closely related to the services they provide and
can even be provided as such from them. Also here
are not imposed on individual service providers a
case-specific victims, but designed in a general form
the framework for the provision of
telecommunications services. It is therefore not
constitutionally objectionable if the companies have
this then bear the costs principle. But the law does
not gemeinwohlbezogene aim to provide a charge for
this (see BVerfGE 30, 292 <311>). A law that
regulates the profession in the way that private
individuals in the exercise of their professional
obligations imposed on it regularly and cover a
multitude of people is not already considered
disproportionate when it charged unreasonable
individual concerned, but only if at a larger affected
group violated the prohibition of abuse (see BVerfGE
30, 292 <316>). have that the cost burdens in this
way choking effects is neither substantiated nor made
visible.
303
It is to be examined further whether or not concerning
particular groups of cases (see BVerfGE 30, 292
<327>) or special situations from the perspective of
proportionality hardship rules are necessary. For at
least this is clear from the arguments of the
complainant on 4) in a procedure BvR 256/08
nothing. In particular, it has also in relation to an
anonymization services on the satisfaction with other
telecommunications companies in excess burden for
themselves or for other providers of such services by
concrete evidence to understand numbers. Only
under this condition could be ascertained to exceed
the legislative discretion in the enslavement of
anonymization services. As long as the assessment
is made by the legislature only by conjecture and
allegations in question, the Federal Constitutional
Court does not examine this issue (see BVerfGE 114,
196 <248>).
304
No fundamental concerns about possible remaining
cost burden is also subject to the requirements of
data according to § 113b sentence 1 No. 1
Telecommunications Act in connection with § 100g
Code of Criminal Procedure, to which the legislature
a compensation scheme has provided for (see § 23
para 1 Court Payment and Compensation Act). The
envisaged compensation claims are not the subject of
these proceedings.
VIII
305
The further result from the fundamental rights, insofar
as their alleged injury is permitted, no further
demands on the challenged provisions.
IX.
306
The infringement of the fundamental right to
protection of telecommunications secrecy under
Article 10 paragraph 1 GG leads to the invalidity of §
§ 113a and 113b of the Act and § 100g para 1
sentence 1 Code of Criminal Procedure, when such
traffic can be levied in accordance with § 113a Act.
The affected standards are therefore to explain in
determining fundamental breach invalid (cf. § 95 para
1 sentence 1 and § 95 para 3 sentence 1 of the
FCC). Accordingly, the interim due to the
arrangement of 11 March 2008 and 28 be in October
2008, by service in the context of requests for
information collected for the time being but not
deleted immediately transmitted to the requesting
authorities, but saved telecommunications traffic. You
may no longer be forwarded to the requesting
agencies.
307
41
The decision on the reimbursement of expenses is
based on § 34a para 2 Federal Constitutional Court
Act.
308Die decision was adopted unanimously as
regards the European law issues, the formal
Constitution and the fundamental compatibility of
provisions of the Constitution of telecommunications
traffic data in the result. Regard to the review of § §
113a and 113b the Act to be unconstitutional, it is the
result of 7-1 votes, and for more on substantive
issues, so far as appears from the dissenting votes,
taken after a 6-2 vote.
309
That the provisions in § 95 para 3 sentence 1 Federal
Constitutional Court Act are declared invalid and
incompatible not only with the Constitution, the
Senate has decided by 4-4 votes. Accordingly, the
rules are not applied to a limited extent transitional
further, but it remains the statutory standard
consequence of the annulment.
Paper
Hohmann Dennhardt
Bryde
Gaier
Eichberger
Schluckebier
Kirchhof
Masing
Dissenting opinion of Judge Schluckebier
the ruling of the First Senate of 2 March 2010
- 1 BvR 256/08 -
- 1 BvR 263/08 -
- 1 BvR 586/08 –
310
I can not the decision in the result and in much of the
reasoning of the considerations outlined below agree.
311
The retention of the traffic wrote the Senate to the
effect of a very serious interference with the
fundamental right under Article 10 GG. I believe that
such a procedure is indeed attach particular weight:
he turns out to be compared to content-control
measures as of significantly lesser severity (I.). I
consider the costs imposed by the retention of traffic
and criminal proceedings access control intervention
beyond the face of the legislators' objectives,
including the Enlightenment and of offenses in
individual cases of major importance, or via
telecommunications committed, however, difficult
unclarifiable are constitutional in principle justified.
The underlying rules to keep my opinion of the
proportionality test in the strict sense, a particular
adequacy and reasonableness test was essentially
(see II). This excludes only the content requirements
are to ensure the security of data to be stored and
transmitted communication traffic, so far I agree with
the Senate majority, without that 'the further take up.
The legal consequence would be saying on the basis
of the assessment, the Senate majority of the
annulment of the contested provisions in sight, in my
opinion was, it should have been in accordance with
the interim measures taken by the Senate until a new
arrangement for further deems applicable (see III.).
I.
312
The Senate majority sees the retention of traffic data
for a period of six months for the service was very
serious encroachment on the fundamental right under
Article 10 paragraph 1 GG. This weighting I do not
share.
313
The telecommunications secrecy protects the
contents and the circumstances of the communication
before taken notice of the public authorities (see
BVerfGE 100, 313 <358>, 106, 28 <37>, 107, 299
<312 f.>). If we write the obligations of the private
service providers to store (§ 113a TKG) engagement
quality, because providers' auxiliaries of the state
were "and this was therefore attributable to the
retention gains, so for assessing the intensity of the
interference, the fact of particular importance that,
before a possible access by state agencies, the traffic
only in the sphere of private service providers remain.
You are in the hands of the contractor, which the
services to be used taker entgegenbringt that when
the contract conclusions of this kind presupposed
basic trust, this would treat any case, first made
operational and billing to technical reasons resulting
data strictly confidential and ensure their protection.
Moreover, the potential for the state of the art
appropriate level of data security is ensured, thus
lacking any basis for adopting an objectified
eingriffsintensivierenden intimidation effect or one -
as the Court put it - "feeling of constant
Überwachtwerdens" and the "diffuse threat." In
addition, the recording is not secret, but because of
advertised Act. Its subject is not the content of
telecommunications operations. As far as the traffic
permit limited conclusions on such content or even
enable the production of motion pictures and social
profile, this concerns the question of proportionality of
the corresponding access rules and respect the
proportionality requirements of the law level. That
such intrusive done in individual uses in existence
according weighty reasons, it does not justify them as
42
exceptional cases, when they prove themselves on
the whole to attach decisive importance in weighting
the storage and this fully be used.
314
The Senate has already in its ruling of 12th March
2003 (BVerfGE 107, 299 <322>) for release of
connection of telecommunications, which were
related to telephone calls, underline that the weight of
the surgery - then across the call - behind the left on
communication content related telephone tapping, of
course, but still large was. Although in this case given
the widespread view of the storage requirement and
prudence a special case design. However, it must at
the weighting of the interference observed is still a
perceptible distance from such a very serious
surgery, such as those for the acoustic surveillance of
private homes or in online searches of information
technology systems, but also in the content
monitoring and evaluation of telecommunications
through direct access of state organs available and
where, moreover - unlike here - is particularly the risk
that the absolutely protected core area of private life
is concerned. The collection of traffic data of all
telecommunications contacts with the private
providers without notice by the public power and
under tight material conditions separately, the
possibility of - a regular basis on the enforcement
level by the ordering judge reviewed and strictly
limited - query as procedural, backed measures -
such as those provided for the collection under §
100g Code of Criminal Procedure are justified -
however, from the perspective of the individual
concerned fundamental institution not thus serious
encroachment on basic rights that would justify this
rate as "very serious" and therefore classified as one
of the größtdenkbaren interference with the
fundamental right. After that surgery remains a result
of storage with the private provider that can be
characterized as particularly weighty. This distinction
further gains its importance in assessing the
reasonableness of the challenged provisions.
II
315
The challenged regulations on the storage
requirement and the collection of traffic data for law
enforcement - are different from the assessment of
the Senate majority - not inappropriately, they are
also reasonable for the parties concerned and
therefore relatively proper.
316
1st The rules satisfy the need for adequacy and
reasonableness as sufficient discharge of the
proportionality principle into account. Based on an
overall balance between the seriousness of the
procedure in Article 10 paragraph 1 GG and weight of
the reasons justifying it turns out that the legislature
has maintained this requirement limits flowing.
317
The requirement of proportionality in the strict sense
requires that the seriousness not of surgery for a total
consideration may be disproportionate to the weight
of the reasons justifying it (see BVerfGE 90, 145
<173>, 92, 277 <327>, 109, 279 <349 et seq, 115,
320 <345>). In the tension between the duty of the
state to legally protected rights protection and the
interests of the individual in protecting his guaranteed
by the constitutional rights it is first task of the
legislature to achieve in an abstract way of
reconciling the conflicting interests (see BVerfGE
109, 279 <350 >, 115, 320 <346>). He is there -
which in the approach the Senate majority proceeds
terminology - an Assessment and discretion.
318
In evaluating the constitutional adequacy of the
scheme is the main point to consider that
fundamental rights are not exhausted by it to fight off
interference by government. Strength of their
objective-legal dimension follows from them the duty
of the state to protect the citizens against attacks.
This duty to protect includes the duty to take
appropriate measures to prevent the infringement of
legal interests, if necessary, educate, assign
responsibility for them and the right to restore peace
(see, Jutta Limbach, AnwBl 2002, p. 454). In this
sense, is one of the ensure the protection of citizens
and their fundamental rights and the foundations of
the community and the prevention of significant crime
at the same time as the Enlightenment to the
conditions of peaceful coexistence and the carefree
use of the fundamental rights by the citizens.
Effective investigation of crime and effective security
are therefore not per se a threat to the freedom of
citizens, however, is not permitted without measure
and limit. They are offered in the context of
appropriate and reasonable to protect the use of
fundamental rights and to protect the legal interests of
the individual. The citizen must be in the
constitutional right to effective protection by the state
can leave the same as on the protection against the
state (see Di Fabio, NJW 2008, p. 421 <422>).
Accordingly, the Federal government as the author of
peace and for order described, and by him
acknowledged to be guaranteed the security of its
citizens as a constitutional value that is consistent
with others in the same rank and indispensable,
because the institution of the state derives also on
their justification (see BVerfGE 49, 24 <56 f.>, 115,
320 <346>).
319
In the balancing of conflicting interests by the
legislator who has to create the legal basis for the
investigation of crime and security services,
considering also that individuals are be expected in
43
its community-and Gemeinschaftsgebundenheit
degree of harm that the legal rights of protection and
fundamental rights of others citizens, but also serve
its own protection (see BVerfGE 4, 7 <15>, 33, 303
<334>, 50, 166 <175>). It is also clear view to be
given to the legislature a room to its regulatory
compensation, both to protect the freedoms of the
fundamental institution, the other to create but those
legal framework to provide effective protection of
fundamental rights and legal interests of citizens
against injury and the investigation of punishable by
appropriate and reasonable resources to enable
effective.
320
2nd The legislature has dealt with the requirement for
storage of telecommunications traffic data for a period
of six months, the intended use legislation and the
criminal proceedings charging scheme in which he
held constitutionally rightful design framework. The
proceeding from the contested provisions impairment
for those affected by the traffic data
telecommunications operators in respect of the
protected rights and legal interests not to place undue
and unreasonable, on the other side of the to-find
compensation is legislative weighting of the protection
of the injured by crime legal rights of individuals and
the community and the corresponding defensive
threats in the age very far-reaching expansion of
electronic communication, which often leave little
trace. This looks, in principle, the Senate majority, so
this aspect into account, but only in assessing the
question of the appropriateness and necessity of the
rules, puts it, however, not explicitly in a
reasonableness review, the interests concerned really
"is another in a relationship".
321
a) the legislature when abstract balance in question
are legally protected rights and interests in the
tension between "freedom and security" first rightful
design space (see BVerfGE 109, 279 <350>, 115,
320 <346>) is determined by the nature of the
regulatory objects and the reality of the scheme to be
met, with marked. Therefore, the purpose and
effectiveness of the schemes also in assessing the
adequacy and reasonableness of taking in the view.
322
The legislature has fundamentally reformed the law
on the reform of telecommunications and other
undercover investigative measures and the
implementation of Directive 2006/24/EC of the system
of criminal procedure covert investigative methods.
He has drawn in a very careful manner to opinion
formulated, an extensive discussion in the law, but
also reviews the prosecutor and police practice (see
Bundestag document 16/5846 Law, p. 1). In the
parliamentary process is a detailed consultation of
experts made (see the minutes of the 73rd and 74th
meeting of the Legal Committee of the German
Bundestag, 16th legislative period, on 19 and 21
September 2007). The effort was also to implement
the previously present law of the Federal
Constitutional Court. The law was eventually adopted
by a huge majority (see plenary of the German
Bundestag, 16th legislative term, 124th meeting on 9
November 2007, p. 13 009 (D), see also the
introduction speech by Federal Minister of Justice
Brigitte Zypries, op plenary p. 12 994 f.). The
legislators wanted new technical developments into
account, as it particularly difficult to clarify
indeterminate crime, transaction and economic crime
as well as crimes committed with the use of modern
communication technologies (see Bundestag
document 16/5846 Bill, p. 2), even the has attached
to this issue in the regulations impact. It was further
the stated aim of the imperative needs of effective
law-based criminal justice into account, whose job it
is to create within the limits of their justice and peace
law. This objective, the discoverability of the facts
necessary to inform in advance in principle (ibid. p.
22). It is the legislature also assumed that the very
communication traffic due to the technical
development towards flat rates - unlike of past time,
just as the connection of telephony, many months
were available - often either are not even stored or
already deleted once before may be a court order to
disclose information obtained or even necessary for
such a request information previously identified (ibid.
p. 27). It is also widely known that even in the Internet
and even crimes are committed. The social reality,
which includes the presence of crime, is formed here
from the various divisions in the area of
telecommunications. If the legislature responds to
this, which, according to his assessment required but
only effectively possible if the corresponding traffic
data subject for a certain period of storage and
storage requirement, it applies to the service
providers, it is not in principle inappropriate and the
fundamental institutions, whose data it is reasonable
to expect. Such precautionary knows the law in other
fields, for example - without this being directly
comparable - in the field of Einwohnermeldepflichten
or suspensions of the so-called account information
by the banks (see § 24c KWG, BVerfGE 118, 168).
323
That is not the approach adopted by the legislature is
out of balance, a certain degree of comfort is also
reflected in the Annual Report 2008/2009 of the
Federal Network Agency, showing the evolution of
the number of different approaches to voice and other
data communication in recent years. The report
shows impressively the exorbitant rates of increase in
the number of connections, but above all of the
information exchanged in the network voice and data
volumes. It demonstrates that the communication
behavior of people in recent years has fundamentally
changed (cf. ibid p. 38 about the DSL connections, p.
50 to encourage participation in the mobile networks,
p. 53 Sprachvolumen to cellular, the growth rates in
44
the flat rate billing, p. 59 for volume of traffic over
broadband connections).
324
Under these circumstances, it may not be in principle
the legislature failed to give attention to the protection
of the legal rights of victims of crime on the
effectiveness of the remedies available to him means
and to the changed situation - even by the obligation
of service in their sphere keep traffic data for a certain
duration and hold - to stop. The pace of state
institutions with the technological progress can then
be understood not merely as a useful round out the
arsenal of criminological investigation, which
complements remains effective conventional
measures of investigation, but is against the
background of the displacement of traditional forms of
communication through to electronic communications,
including the subsequent digital processing and
storage to be seen. For effective law enforcement
and security not only in relation to serious crime, but
also for the investigation of crimes that are of major
importance in a particular case or to be committed by
means of telecommunication, but are without access
to heavy traffic unclarifiable, the availability of traffic
for a period of six months is not objectionable
assessment of the legislature is of great importance
(see BVerfGE 115, 166 <192 et seq, see also Federal
Constitutional Court, 1st Chamber of the Second
Court decision of 22 August 2006-2 BvR 1345 / 03 -,
NJW 2007, p. 351 <355>).
325
The Senate majority recognizes accordingly, that the
increased use complicated electronic or digital
communication and its penetration into almost all
areas of life, the law enforcement, as well as security
and advanced communication technologies in the
commission of various crimes are increasingly being
used and there to the improvement and crime
contribute. They weighted this development but with
the proportionality test in the strict sense, not to the
necessary extent for my opinion.
326
b) The Senate majority also restricts the assessments
and flexibility for the legislature to meet on the field of
crime intelligence and security to protect people
adequate and reasonable rules, a practical result in
the almost complete. So that it is also the
constitutional principle of judicial restraint ("judicial
self-restraint") to conceptual decisions of
democratically elected legislators are not sufficiently
addressed. It gives the legislature a legal system until
the details on the nature of an action guide that it
leaves no room for a significant solution which the
existing, developed relationships in the
telecommunications sector will meet for its
assessment.
327
The ruling is a storage period of six months - that the
required by the EC directive minimum - as in the
ceiling before lying down and possibly constitutionally
rechtfertigungsfähig, wrote to the legislature before of
control that the intended use legislation also contains
the access conditions have limited him to a catalog
deeds Technology in criminal law and exclude the
possibility of the use of traffic also to educate
committed by means of telecommunications difficult
inexplicable crimes and expands the notification
obligations and the legal minimum requirements of a
certain kind then left to the legislature, no significant
room left for a refinement in our own political
responsibility. He is essentially limited to the edges of
the catalog for the criminal proceedings polling
slightly adapt and change. He must implement the
ruling, he will not waive a revision to Community law.
This replaces the verdict in practice to the legislation
to the Senate for the details of a constitutionally
permissible only considered scheme.
328
3rd The Senate majority calls for the legislature to
create, in the context of the purpose of determining
the same time, clarity on the access conditions and
verfahrenssichernde requirements. Protect it from the
legislature the control system able to work with a
system of complementary legal bases, as is in other
areas so far been without challenge. Thus, the
Senate Constitution about the so-called account
information decision is not contested that the demand
for the performance of other regulated legal tasks
may be required are described must call event and
eligibility in a different law (see BVerfGE 118, 168
<191>) . Use information deemed insufficient, the
Senate however, was in the decision to so-called
automatic number plate recognition, where the
challenged law, however, made no statement of
purpose, and therefore all possible uses were
included (see BVerfGE 120, 378 <409>). The case
here is different, however (§ 113b TKG). It is
therefore just the norm clarity and, if those legal
requirements and stipulations that lead to the
significant intensification of the procedure by
retrieving the data that are regulated in a specific
area each rechtsgebietsbezogenen independent
normative structure. Both schemes are naturally
subject - possibly also in their interaction - the
constitutional requirements and the Constitutional
Court review. Even when compared to a national
legislature of the federal legislature the responsibility
for the storage of traffic data bears any additional
regulation in their country must also satisfy the
Constitution. A legal protection deficit can not
therefore arise.
329
Accordingly, there was no reason, in addition to
access to the criminal standard of the Code of
Criminal Procedure § 100g, which has been with the
constitutional part, attacked to respond also to the
45
detailed requirements for the use of traffic data for
security purposes and for purposes of intelligence.
330
4th The Senate denied the legislature finally the
retrieval of traffic data for the investigation of crimes
that are not described in the current catalog of § 100a
para 2 Code of Criminal Procedure, but in individual
cases are still of considerable importance, and of
such acts which are committed through
telecommunication (§ 100g para 1 sentence 1 No. 1
and 2, Code of Criminal Procedure). He also is not
sufficiently taken into account the weight of the
eligible offenses, and - as far as the legislature
deemed it difficult unclarifiable - their importance for
the effective investigation of crimes. In the case of
No. 1 of § 100g para 1 sentence 1 Code of Criminal
Procedure, the legislature is based on criteria set by
the Senate in its ruling of 12th has in March 2003
(BVerfGE 107 approved, 299 <322>) for release of
connection of telecommunications. There, the Senate
pointed out that that intervention is justified only for
offenses which attaches to the legislature a general
focus on and to have considerable importance in this
case also, as a result of the damage, and the levels
of threat to the public. I do not see that the Senate
would not there complained of interference threshold
for accessing so-called traffic-weighted stocks
fundamentally different. The proportionality test then
the responsibility of the case in question, making the
ordering judge, who also include the weight of access
to the traffic in each case to weigh in with and to be
limited by the text of his order.
331
With regard to the wishes via telecommunications
acts committed for the excluded, the Senate access
to the data stored in accordance with § 113a TKG
also know traffic is not weighted enough that the
legislature starts here of considerable educational
difficulties. These can appear next to the specific
weight of the aufzuklärenden fact, the retrieval of
outstretched traffic to be appropriate, especially as
though equipped - as here - the legislature, the
retrieval conditions with strict subsidiarity clause
giving the measure is admissible only if the
investigation of the facts or to determine the
whereabouts of the suspect by other means would be
futile and the collection of data - even in the case - in
proportion to the importance of the matter is (§ 100g
para 1 sentence 2 Code of Criminal Procedure).
332
As it is for the legislature to ensure effective law
enforcement and to preclude any significant gaps in
protection, it can he not be denied, even on this side
of particularly serious crimes in respect of the least
nor specific weight of an injured legal right to access
to open to traffic because he thinks in his
assessment, to exclude only as the emergence in fact
largely lawless areas and a broad drain of the
Enlightenment. Examples of such point is the extent
of the criminal element of the enactment (§ 238
paragraph 1 No. 2 StGB, cyber-stalking "), where
verification at a" statement against hers constellation
", but also to identify an unknown perpetrator, the first
Traffic often the only identification approach are. The
possibility of a flying start here leads further limited
because it is not recorded as the e-mail traffic, and
ultimately dependent on the goodwill of the service
provider. The same applies to the facts of the threat,
but especially in the area of fraud on the Internet, are
available at the police crime statistics as evidenced
by the significant number of cases in question.
Considering finally come, other offenses (§ 202a to
202c, spying and interception of data, see also § §
269, 303a, 303b of the Criminal Code, forgery of
evidentiary documents, data manipulation, computer
sabotage, § 38 para 1 WpHG in connection with § 14
para 1 No. 1 WpHG, so-called insider trading, § 38
paragraph 2 in conjunction with § 39 Paragraph 1 No.
1, § 20a para 1 sentence 1 WpHG, Nos 1-3, unlawful
market manipulation, § 86 StGB, the spreading of
propaganda of unconstitutional organizations ).
333
While it would seem inconceivable that the legislature
one of these events provided for in the Senate takes
up the required catalog of serious crimes. He will,
however, the limits of the fault principle undertook
reasonable threat of punishment, which is able to
justify this. Offenses that are not committed
professionally or raise any particularly large claims in
individual cases, may be hardly included in such a
list, as he envisioned the Senate. Also, the use of
operationally only remaining "non-stock data" is the
explanation, lack barely able to mitigate. There are
big differences between the providers experience.
Part are not recorded the data, some after only a few
hours or days cleared. Even the investigative steps
that lead to obtaining a court order and then prepare
for such a request, and the decision on the
application are often a long period of claim, as the
traffic data available for operational reasons before
the service is.
334
5th Similarly, as regards the access threshold set by
the Senate for security purposes. By the Senate for
sufficiently weighty legal rights held to consider the
traffic as accessible and usable, would have given the
defense is not also a general danger to property of
significant value, their conservation in the public
interest must be included. It seems incomprehensible
to exempt significant property in this sense, as these
are also constitutionally protected (see Article 14
paragraph 1 GG). The inclusion of protection and this
is not then at least inappropriate, if the traffic data
collection - such as in § 20m BKAG - also provides a
subsidiarity clause ("... otherwise difficult or hopeless
much would be. ").
46
335
6th As far as the Senate majority eventually
extending the notification requirements in case of
access to traffic postulated and in principle for the
criminal law is not only a so-called open access, but a
required "before the query or submission" successful
end notification when the protection is not contrary to
the study purpose, leaves these requirements, the
legislative approach and takes over Sun in the
discretion of the legislature. The concept of the
legislature passed, to regulate all "undercover"
actions, which he has calculated explicitly the traffic
data collection (Bill BTDrucks 16/5846, p. 2). Also §
100g Code of Criminal Procedure provides that traffic
data (initially) "without the knowledge of those
concerned" may be levied. This also has a good
reason. Because investigations are regularly
characterized by a considerable momentum and lead
to accelerated. Expenses, the verfahrenssichernden
and law-enforcement purposes are not necessarily
due to real time, initially held in check. The legislator
has therefore taken for the traffic data collection a
sophisticated system for the notification (see § 101,
Section 1, paragraph 4, sentence 1, No. 5, para 5
Code of Criminal Procedure), which requires no prior
notice. In addition, he has to raise with the
permission, initially without knowledge of the affected
traffic, made an apparent typing, which derives from
the fact that often hinder the purpose of the
investigation, the Nichtbekanntsein the whereabouts
of the person concerned or the need to speed up the
findings of a pre-alert. This is obviously not
inappropriate to the person concerned is reasonable
and therefore the legislature constitutionally at liberty.
III.
336
By the Senate were to annul the contested
provisions, although the legal consequence of the
incompatibility statement carried by the majority.
However, it would have here on the basis of the
constitutional assessment of the majority, drawing on
a permanent jurisdiction of the Federal nearby to set
a deadline for the legislature for new rules and
existing regulations in line with the stipulations of the
Senate adopted interim measures to temporarily to
explain more applicable. For the Senate grants the
legislature the possibility to provide a traffic data
storage requirement for six months and to create
under the conditions stated in the ruling also access
systems, which are essentially the provisions of the
interim measures. The stipulations of the Judgement
is different from those in the interim measures
primarily only in that higher demands on data security
and notification obligations are further claimed. This
suggests, according to the assessment - the frequent
practice of the Federal Constitutional Court - by a
declaration of invalidity in sight at first and not to
consider it mandatory to allow temporarily just to
access data service providers, who are for
operational or billing reasons still exist . So then for
the time being until a new arrangement for the
security and significant deficiencies in the
investigation of serious crimes also have to get in and
purchase made. On the grounds of the interim
measures adopted by the Senate and made trade-
offs there is referred. In addition, the service provider
must suspend their steps for the implementation of
the challenged legislation and to establish the old
state have to in the case of Community law already
required new, amended law to create the conditions
again at considerable expense.
Schluckebier
Dissenting opinion of Judge Eichberger
the ruling of the First Senate of 2 March 2010
- 1 BvR 256/08 -
- 1 BvR 263/08 -
- 1 BvR 586/08 –
337
I agree with the decision of the Senate majority in
parts of the sentencing outcome, and in essential
elements reasons not to. I agree in principle the
criticism of the judge Schluckebier thereto, whose
opinion I am in and the ground plug in the great
majority. I can therefore concentrate in the following
to a brief summary of the considerations bearing on
my position:
338
1st Also, in my opinion, the legal arrangement of the
storage of telecommunications traffic data is
comprehensive and objective view of their staff,
external, and their Anlasslosigkeit the considerable
duration of the required data reproach a weighty
intervention in Article 10 paragraph 1 GG. Since,
however, limits the obligation to store the traffic data
and does not control the content of
telecommunications operations, and because it is
decentralized in the private service, associated with
the storage of the intervention was not the overriding
weight to the Senate majority attributes to him in
general. The fear, the Senate majority by the
intimidation effect on the communication behavior of
the population, I think, given the legislative
conception of the data, which excludes a free access
of public authorities at the decentralized among
private service providers store traffic and strict
substantive and procedural hurdles - especially a
substantial judges subject - for a data retrieval
47
provides or supplement also, in my opinion to such
statutory requirements nor is unfounded, at least for
empirical evidence.
339
The main load effect for the subject of protection of
Article 10 paragraph 1 GG, which starts from the
arrangement of data storage for the citizen is,
therefore, I believe, for even in the first place in the
late of this huge data hazard potential due to abuse
by the service providers themselves through
unauthorized third parties or by an excessive use of
law enforcement or police authorities. Against this
must be taken precautionary. Therefore, I fully share
the position of Senate majority to the requirements for
a sophisticated backup, the service providers are by
law prescribe. Even a majority of the other procedural
safeguards for data storage, data retrieval and with
the further data (deletion and logging requirements,
transparency and legal requirements), which holds
the Senate majority to offer, I agree in principle,
although subject to the Judgement of the Senate
majority to the legislature in this regard made
provisions in my estimation over long distances to
small pieces, and not sufficiently take into account the
discretion, conferred by the Constitution to the
legislature in this context.
340
2nd Unlike the Senate majority and in accordance
with the judge Schluckebier I am of the view that the
§ § 113a, 113b TKG underlying legislative concept of
a tiered legislative responsibility for storage and
retrieval arrangement in principle with the Constitution
is consistent. Under this concept based TKG § 113b
no independent, on the order of the data in § 113a
TKG beyond interference with Article 10 paragraph 1
GG. The rule contains rather offered by the
constitutionally intended use for the storage of traffic
data. Only one sentence in § 113b the
Telecommunications Act provided for other statutory
authorization for retrieval of traffic leads to a renewed,
on the importance of data storage beyond previously
performed surgery in Article 10 paragraph 1 GG. In
this way, the federal legislator leaves with § 113b
TKG in charge of the relevant matter; legislature of
the Federation or the Länder to him to decide by
virtue of his constitutional and democratic legitimacy
of rightful authority, whether and to what extent the
purpose of law enforcement, security or should
access to the needs of the intelligence on the
telecommunications traffic. Here, the respective
legislature of course true to themselves the
constitutional limits of a relative access to the traffic.
341
A constitutionally impermissible arrangement is on a
data storage for indefinite purposes not herein. The
federal legislature has designated in § 113b together
with the Telecommunications Act made in § 113a
TKG obligation of service for data storage, the
purposes for which the stored data may be used. By
the federal legislature, the arrangement of the data
taken on responsibility for the fact to the detriment of
citizens established risk potential requires, however,
also in my opinion - so far I agree with the position of
Senate majority in the starting point to - in addition to
the basic definition of the purpose of establishing at
least a minimum threshold for intervention, such as
they described in § 113b sentence 1 No. 1
Telecommunications Act in connection with the same
time adopted a Code of Criminal Procedure § 100g
par for the prosecution and with the concept of
"significant dangers" in § 113b sentence 1 No. 2 TKG
for security, but not comparable to § 113b sentence 1
No. 3 TKG for fulfilling the tasks of the intelligence is
provided. This would require the appropriate
supplement. A detailed and final determination of
uses, as the Senate majority required by the Federal
legislature at the same time with the arrangement of
data storage, however, I think of constitutionally
unnecessary.
342
3rd Finally, and above all, I can weigh the outcome of
the Senate majority does not agree, as far as the
Code of Criminal Procedure provided for in § 100g §
113a by use of the stored data for purposes of the Act
prosecution deems unconstitutional. This is due first
is that the Senate majority, even in the base caused
by the arrangement of data storage procedure in
Article 10 paragraph 1 GG, in my opinion too much
weight and the legitimate concerns of the general
public as well as individual citizens in an effective
effective law enforcement and security on the other
hand too little importance attaches. It also respects
the legislature in the evaluation of the competing
goods and protect the rightful scope of the scheme to
low. Here I refer to the split of my comments in the
dissenting opinion of Judge Schluckebier.
343
The proportionality test, the Senate majority also
suffers from the fact that they always in their
consideration of the widest possible engagement of a
comprehensive, ultimately proceeds to a movement
or social profile of the concerned citizens aimed data
retrieval. Herein may lie in the fact a procedure that is
equivalent in severity to that of a weighty its access to
the telecommunications content of the citizen. This
view does, however, out of consideration that a large
number of data queries individual events, short
periods and telecommunications relations only one or
a few individuals (such as the telecommunications
links of a person on a date or have as their object
only in a given hour) can. One such query data is
shown only a slight, certainly not to communicate with
48
the access to content similar surgery weight, despite
the fact that they will be answered from the full-scale
data collection. By the Senate majority sees based in
any data retrieval a very serious infringement of
Article 10 paragraph 1 GG, regardless of its real level
in the particular case and, therefore, the legislature
generally constitutionally very high activation
threshold thinks committed, she is, even if They deny
this, I believe also in contradiction to a rating that the
same data by the Senate without objection, may be
interrogated by the authorities, if they are not stored
according to § 113a TKG, but from the service for
operational reasons.
344
Proceeding from this I can not agree, despite the
different weighting in the base by the Senate majority
to scale formulated requirements for a permissible
use of traffic data for reasons of security and
intelligence purposes (CV 2 b and c) still, but not the
requirements for the use of data to track crime (CV
and C VI 2 a 3 a aa). In that regard, I consider that
the legislature in § 100g Code of Criminal Procedure
created differentiated approach to data collection and
use law enforcement to be constitutional. It is the
responsibility of each individual case to rule on the
admissibility of a data query called to judge the
legitimate interests of those affected by Article 10
paragraph 1 GG, taking into account the weight of the
applied techniques to adequately take into account,
as is true for the crimes committed by means of
telecommunications offenses in § 100g para 1
sentence 2 Code of Criminal Procedure by law, will
also formally required.
345
4th Even from the standpoint of the majority of the
Senate, in my opinion would be only the
unconstitutionality of the challenged provisions, and
determine in accordance with the interim measures
adopted in this case at least the interim data
collection and storage order pending the
establishment of a constitutional revision have been.
With the seamless annulment of the provisions and
the obligation to delete the findings on the basis of
interim measures traffic increases, the Senate
majority disadvantage to the prosecution, but above
all the risk is not excludable hazards important
safeguard goods in department, although a
consultation which the interests in the arrangements
meet the requirements formulated in the constitutional
principle holds for and expect an appropriate statutory
scheme. Such a solution can not support me.
Eichberger