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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 ... repeated and extended by order of 28
October 2008 (Federal Law Gazette I page
- Represented by Prof. Dr. Jens-Peter Schneider, 2239), recently reiterated by order of 15th
Lürmannstraße 10, 49076 Osnabrück - October 2009 (Federal Law Gazette I page
3704), the providers of publicly available
against the regulations on data retention in the law telecommunications services as part of
establishing new rules on official requests for information collected,
Telecommunications and other undercover but for the time being not in accordance
investigative measures and the implementation of with § 113b sentence 1 sentence 1 of the
Directive 2006/24/EC of 21 December 2007 (BGBl I Telecommunications Act to the requesting
p. 3198) authorities sent but saved
telecommunications traffic to delete it
- 1 BvR 586/08 - immediately. They may not be transmitted
to the requesting agencies.
, the Federal Constitutional Court - First Senate - 4. The Federal Republic of Germany has to
composed of Judges and magistrates report to the complainants their necessary
expenses from the constitutional process.
President paper,
Hohmann Dennhardt,
Bryde,
Gaier,
Eichberger,
Schluckebier, Reasons:
Kirchhof,
Masing

to the hearing of 15 December 2009 by A.

Verdict 1 Subject matter of the constitutional provisions are


the Telecommunications Act (hereinafter the Act) and
the Criminal Procedure Code ("the Code of Criminal
hereby: Procedure) that regulate a precautionary retention of
telecommunications traffic data from the provider of
publicly available telecommunications services for six
1. § § 113a and 113b of the months and the use of this data.
Telecommunications Act, as amended by
Article 2, paragraph 6 of the Law on the
revision of telecommunications and other
undercover investigative measures and I.
the implementation of Directive
2006/24/EC of 21 December 2007 (Federal
Law Gazette I page 3198) they infringe 2
Article 10, paragraph 1 of the Constitution The challenged provisions have been by the law on
and void. the revision of telecommunications and other
2. § 100g, paragraph 1, sentence 1 of the undercover investigative measures and the
Code of Criminal Procedure, as amended implementation of Directive 2006/24/EC of 21
by Article 1, paragraph 11 of the Act to December 2007 (BGBl I S. 3198, the Law on the
restructure the telecommunications and revision of telecommunications) is added or changed,
other undercover investigative measures and following its article 16, paragraph 1 on 1 January
and the implementation of Directive 2008 entered into force. They are supporting the
2006/24/EC of 21 December 2007 (Federal implementation of Directive 2006/24/EC of the
Law Gazette I page 3198 violation), when European Parliament and the Council of 15 March
such traffic in accordance with § 113a of 2006 on the retention of data in the provision of
the Telecommunications Act shall be publicly available electronic communications services
subject to Article 10, paragraph 1 of the produced and processed, and amending Directive
Basic Law and is to that extent void. 2002/58/EC (OJ L 105 of 13 April 2006, p. 54,
3. The interim result of the arrangement of hereinafter : Directive 2006/24/EC).
11 March 2008 in a procedure BvR 256/08
(Federal Law Gazette Part I page 659), 3

3
1st All constitutional complaints directly against § §
113a and 113b Telecommunications Act, which, by 6
Article 2 of Law No. 6 on the reform of In addition to storage in accordance with § 113a TKG
telecommunications has been inserted into the is for providers of telecommunications services
Telecommunications Act. The constitutional process pursuant to § 96 TKG also given the option to save
in a BvR 263/08 and 586/08 BvR a contact also telecommunications traffic and use, to the extent
directly against § 100g Code of Criminal Procedure, necessary to the aims described above is. After the
as amended by Article 11 of Law No. 1 for new end of a telecommunications link such data must be
regulation of telecommunications, as far as the used according to § 96 paragraph 2 sentence 1 of the
collection of in accordance with § 113a TKG stored Act, in essence, where they are needed to determine
data allows. the remuneration and settlement of accounts with the
participants (§ 97 para 1 sentence 1 of the Act), to
4 generate an itemized bill (§ 99 para 1 sentence 1 of
a) § 113a TKG aims to have regard to all publicly the Act), as required for the recognition, narrow or
available telecommunications traffic data that provide eliminate disruptions or failures in
information about participating in a telecommunications systems required (§ 100 para 1
telecommunication connection ports, over time, has of the TKG), and to provide information about the
taken place at the telecommunications, and on the owners of connections of which threatening or
places that communicates from which is to save for harassing phone calls went out (§ 101 para 1
six months and to hold for the state to task sentence 1 TKG).
performance available. The law takes so long been
raised claims of the Federal Council on (see 7
Bundestag document 14/9801, p. 8; BRDrucks TKG § 113a provides:
<Beschluss> 755/03, p. 33 ff; BRDrucks 406/1/04;
BRDrucks 406/04 <Decision >; BRDrucks 8
<Beschluss> 723/05, p. 1), where in 2006, followed § 113a
with reference to the relevant actions on the
European level, and the German Bundestag. He 9
called on the Federal Government to approve the Storage requirements for data
draft Directive 2006/24/EC, and soon submit a draft
Implementation Act (see Bundestag 16/545, p. 4, 16 / 10 (
690, p. 2; BTPlenarprotokoll 16/19, p. 1430). Which A) a person providing publicly available
the federal government came with the draft law to telecommunications services to end users,
restructure the telecommunications, according to (see is required to save him from his service in
Bundestag document 16/5846). the use of traffic data generated or
processed in accordance with paragraphs
5 2-5 six months in the country or in another
§ 113a para 1 sentence 1 of the Act requires Member State of the European Union.
providers of publicly available telecommunications Anyone who publicly available
services, which in § 113a para 2-5 TKG individually telecommunications services to end users
listed telecommunications traffic data to phones, provides, without having to generate traffic
Internet and mobile phone calls, to send SMS, MMS and to process, must ensure that the data
or similar message, to E-mail connections to the is stored according to Clause 1, and the
Internet and store for a period of six months. Person Federal Network Agency on the request of
providing such services, without having to generate who collects the data.
traffic is to ensure under § 113a para 1 sentence 2 of
the Act, that the data is stored, and to notify the 11
Federal Network Agency, who collects the data. (2) The provider of publicly available
Anyone providing telecommunications services, and telephone store:
changed according to § 113a TKG to memorized data
is also required, under § 113a para 6 TKG for storing 12
the original and the changed data. After expiration of 1st the phone number or other identifier of
the retention period, the data must be deleted the calling and called party and in the case
according to § 113a para 11 of the Act within a of conversion or forwarding any other
month. The content of the communication and data participating port,
referring to § 113a para websites must not be stored
TKG 8. For the data points § 113a para 10 of the 13
Telecommunications Act in the telecommunications 2nd the beginning and the end of the
sector due diligence and required that the access to connection by date and time, indicating the
this data only specially authorized personnel are underlying zone,
reserved.

4
14 3rd accessing the electronic mailbox whose
3rd in cases where telephone service may, ID and the Internet Protocol address of the
under the different services are used, person using it,
information about the used service,
26
15 4th the dates mentioned in paragraphs 1-3
4th in the case of mobile telephony further: of the service usage by date and time,
indicating the underlying zone.
16
a) The international mobile subscriber 2 (4) The provider of Internet access
identifier to the calling and called parties services save:
access,
28
17 1st to the subscriber for an Internet
b) the international identification of the Protocol address assigned to the Internet,
calling and the called terminal,
29
18 2nd a unique identifier of the port through
c) the name of by the calling and called which the shipment of the Internet,
parties connected with the beginning of the
compound used radio cells, 30
3rd the beginning and the end of the
19 Internet under the Internet Protocol address
d) in the case of anonymous prepaid assigned by date and time, indicating the
services, the first activation of the service underlying zone.
by date, time and name of the cell
31
20 (5) If the provider of telephone services
5th in the case of Internet telephony, the listed in that provision for the traffic referred
Internet protocol address of the calling and to in § 96 para 2 purposes even save or
called party. record when the call is not answered or
because of an interference of network
21 management is unsuccessful, the traffic
Sentence 1 shall apply when forwarding a data are also in accordance with this
text message, multimedia message or provision store.
similar, taking into account instead of the
information in sentence 1 No. 2, the timing 32
of the dispatch and receipt are save the (6) a person providing telecommunications
message. services, taking account of the changes
under this provision, the records is to store
22 the original and the new indication and the
(3) The provider of services of e-mail store: timing of the required transfer of this
information by date and time, indicating the
23 underlying zone.
1st when sending a message to the ID of
the electronic mail and the Internet Protocol 33
address of the sender and the ID of the (7) Any person who operates a mobile
electronic mailbox of each recipient of the network for the public is bound to the
message, stored in accordance with this provision
Titles of radio cells also hold data, giving
24 rise to the geographical locations of the
2nd upon receipt of a message in an respective cell-sufficient radio antennas
electronic mailbox ID of the electronic and their main beam directions.
mailbox of the sender and the recipient of
the message and the Internet protocol 34
address of the sending telecommunications (8) The content of communication and data
system, requested pursuant to this provision,
websites must not be saved.
25
35

5
(9) The storage of the data referred to in of Criminal Procedure. For the security and the
paragraphs 1-7 shall be made so that performance of duties of the intelligence now refer §
requests for information of the authorized 20m of the Federal Criminal Law (hereinafter: BKAG)
bodies can be answered immediately. in the wording of the law to respond to threats of
international terrorism by the Federal Office of 25
36 December 2008 (BGBl I p. 3083) and various
(10) is obligated under this provision provisions in § 113a Land in the Act and enable the
concerning the quality and the protection of official use of the stored data under this provision.
stored traffic data in the field of
telecommunications due diligence to be 42
observed. In the context of which he has Lawfully stored in telecommunications traffic,
achieved through technical and however, could also before the entry into force of §
organizational measures that access to the 113a TKG already for law enforcement or security for
stored data only possible purpose of it the performance of intelligence tasks are used. Such
specially authorized personnel. was § 100g para 1 Code of Criminal Procedure, as
amended by Article 1 of the Act to amend the Code of
37 Criminal Procedure of 20 December 2001 (BGBl I p.
(11) The party liable under that provision, 3879, hereinafter § 100g StPO aF) is suspected of a
the stored solely on the basis of this crime of considerable importance or a perpetrated by
provision is to delete data within one month a terminal equipment of telecommunications crime on
after the expiry of the period referred to in the basis of decision of the judge an obligation of
paragraph 1, or to ensure the erasure. service providers to supply information on
telecommunication connection before. Also approved
38 as Article 34b para 2 no 1 of the Act on the functions
b) § 113b Telecommunications Act regulates the and powers of the Bavarian State Police (Police Task
purposes for which authorized in accordance with § law, 'the BayPAG) as amended by the Act amending
113a TKG stored data is used. He distinguishes the Police Act and the Parliamentary Task control
between the transmission to the authorities to allow panel-law of 24 December 2005 (GVBl p. 641) or §
such a use to perform their functions, and use by the 8a para 1 sentence 1 No. 4 of the Law on
telecommunications providers themselves to supply Cooperation of the Federal and State Governments in
information pursuant to § 113 TKG, in particular the matters of the Constitution and the Federal
owners of Internet connections. Constitution (federal constitution protection law, 'the
BVerfSchG) as amended of the law to complement
39 the counter-terrorism law of 5 January 2007 (BGBl I,
aa) § 113b sentence 1 sentence 1 of the TKG p. 2) to security or performance of information about
provides for the purposes for which the existing tasks Constitution telecommunications
telecommunications companies are allowed to connection data obtained.
transmit the data to the authorities. The conditions
under which these may in turn use the data to be 43
regulated by federal or state law provision in a law bb) § 113b sentence 1 sentence 2 TKG, the use of
specialist. § 113b sentence 1 sentence 1 of the TKG the stored data according to § 113a TKG closed for
provides that the person obliged to store the data that other than the sentence a phrase in § 113b 1 TKG
is stored solely on the basis of the storage obligation these purposes, although in principle. It can however
in accordance with § 113a TKG, exclusively for the be an exception in the way that they may be used by
prosecution of criminal offenses (No. 1), to prevent service providers and to supply information pursuant
serious risks to public safety ( may pass No. 2) and to to § 113 TKG.
carry intelligence tasks (3) to the relevant parties.
44
40 § 113 para 1 Telecommunications Act allows
The transmission of data to the relevant body may authorities to call up so-called customer and inventory
take place at its request, pursuant to § 113b sentence data in accordance with § § 95 and 111 of the Act, in
1 sentence 1 TKG only to the extent provided in the particular of telephone numbers, access codes and
relevant statutory provisions of the trade law by the names and addresses of subscribers. § 113b
reference to § 113a TKG explicitly and arranged in a allows a sentence of clause 2 TKG it to the service
particular case. providers, information about the owners of so-called
"dynamic" Internet protocol addresses (the IP
41 addresses) grant. IP addresses are not under the
The fachrechtliche enabling provision for the use of current state of development of a port normally
the stored data according to § 113a of the Act is the associated with fixed as so-called "static" IP
prosecution of the complainants in the proceedings a addresses, but assigned to the Internet user only for
BvR 263/08 and 586/08 attacked a BvR § 100g Code the duration of each access to the Internet as a

6
dynamic IP addresses. About the owner of the port 47
that was used from which a particular dynamic IP Information under § 113 para 1 sentence 1 of the
address at a particular time is, therefore, only TKG are given to the extent necessary for the
information to be given if the traffic can be analyzed, prosecution of crimes or misdemeanors, to respond
which give information about which port the relevant to threats to public security or public order or for the
IP address to material time, was assigned. This performance of intelligence tasks.
allows § 113b set a sentence for the two TKG TKG
data stored in accordance with § 113a. 48
cc) § 113b Telecommunications Act provides:
45
According to the predominant view allowed traffic to 49
supply information about the holder of dynamic IP § 113b
addresses to § 113 paragraph 1 TKG be used even
before the entry into force of § § 113a and 113b TKG 50
(see, for instance LG Stuttgart, decision of January 4, Using the stored data according to § 113a
2005 - 13 Qs 89/04 - NJW 2005, p. 614 <614 f.>; LG
Hamburg, decision of 23 June 2005-1 Qs 43/05 -, 51
MMR 2005, p. 711 <712 f.>; Sankol, MMR 2006, p. The party liable under § 113a must solely
361 <365>; aA LG Bonn, Decision of 21 May 2004-31 on the basis of the storage obligation in
Qs 65/04 - DuD 2004, p. 628 <628 f.>; OLG accordance with § 113a stored data
Karlsruhe, Judgement of December 4, 2008 - 86/07 4
U -, MMR 2009, p. 412 <413 f.>; bear, Handbook on 52
Computer Evidence, 2007, p. 148, para. 212; Bock, 1st to prosecute crimes,
in: Geppert / Piepenbrock / contactor / Schuster, Beck
'scher comment to TKG, 3rd edition 2006, § 113 para. 53
23 f.). we could use it only on in accordance with § 96 2nd to repel serious threats to public safety
TKG stored traffic data. The possibility of an or
identification of the holder of a dynamic IP address
via an information pursuant to § 113 paragraph 1 54
TKG was therefore dependent on whether such data 3rd to fulfill the statutory duties of the
were stored on the date the request for information constitutional authorities of the Federal and
yet. State Governments, the Federal
Intelligence Service and the Military
46 Intelligence
Important is the identification of the holder of IP
addresses as the copyright notice. If management 55
and rights holders to record the IP addresses where submit to competent authorities at their
copyright violations are committed in the Internet, the request, to the extent provided in the
law enforcement authorities through information respective statutory provisions with
requests under § 113 paragraph 1 TKG determine the reference to § 113a and the transmission is
respective subscriber to against the can do the rights arranged in a particular case, for any
holders for access to the criminal files then civil law. purpose other than an exchange of
While conceding § 101 paragraph 2 sentence 1 No. 3 information under § 113, it may not use the
of the Copyright Act ("the Copyright Act) as amended data. § 113 para 1 sentence 4 shall apply
by Article 6 of Law No. 10 for improving the accordingly.
enforcement of intellectual property rights of 7 July
2008 (BGBl I S. 1191) under their copyright injured 56
now, under certain conditions, a civil right to The § 113b of the Act in relation taken control of the
information to the telecommunications services Telecommunications Act § 113 provides in relevant
providers one. This may provide this information to part:
the Copyright Act § 101 paragraph 9 on the basis of a
court order under use of telecommunications traffic 57
data. However, this is a return to the stored data § 113
according to § 113a TKG excluded (see OLG
Frankfurt am Main, Decision of 12 May 2009 - 11 W 58
21/09 -, MMR 2009, p. 542 <544 with further Information Procedure Manual
references; Listen, NJW 2008, p. 3099 <3101>;
Baker, in: Rensen / Brink, lines of the Federal 59
Constitutional Court, 2009, p. 99 <111f>, footnote (A) a person providing telecommunications
49). services or business-it participates, has in
each case to the competent authorities

7
shall promptly at its request information on considerable importance, especially one in § 100a
the charges under § § 95 and 111 data, as para 2 Code of Criminal Procedure offense,
necessary for the prosecution of crimes or committed or has attempted to commit a crime
misdemeanors, to respond to threats to prepared or that someone has as perpetrators or
public safety or order or to fulfill the participants of a crime committed by means of
statutory duties of the constitutional telecommunications.
authorities of the Federal and State
Governments, the Federal Intelligence 63
Service or the Military is required. The data collection may under § 100g para 2
Information on data by which to access sentence 1 in conjunction with § 100b paragraph 1
devices or in this or in the network set up sentence 1 and 2, Code of Criminal Procedure except
storage facilities will be protected, in the case of imminent danger only be ordered by
particularly PIN or PUK, has a sentence to the judge. The arrangement may be directed in
the obligor pursuant to a request for accordance with § 100g para 2 sentence 1 in
information under § 161 para 1 sentence 1, conjunction with § 100a para 3 Code of Criminal
§ 163 para 1 Code of Criminal Procedure, Procedure only against the defendant, or against
the data collection requirements of the persons who are deemed required by certain facts is
police laws of the Federal or State that they are intended for the accused arising from it
Governments to prevent threats to public or receive messages or pass, or that the suspect
safety or order, § 8 paragraph 1 of the used her connection.
federal constitution protection law, the
relevant provisions of the country's 64
Constitution Act, § 2 paragraph 1 of the For crimes committed by means of
Federal Intelligence Service Act or § 4 Abs telecommunications traffic data collection according
may be given. 1 of the MAD-law, to other to § 100g paragraph 1, sentence 3 Code of Criminal
public or private bodies such data can not Procedure only if the investigation of the facts or the
be transmitted. An access to data that are determination of the whereabouts of the suspect by
subject to the secrecy of other means would be futile and the collection of data
telecommunications is allowed only under in proportion to the importance of the matter stands.
the conditions of the relevant statutory This limitation was the legislature on the grounds of
provisions therefor. Providing information proportionality to be necessary because the traffic
about the debtor has to maintain its data collection was donated by the storage
customers and third parties confidential. requirement of § 113a TKG related expansion of the
data volume to total intensity of intervention (see
60 Bundestag document 16/5846, p. 52).
(2) ...
65
61 Of the measures pursuant to § 100g para 1 sentence
c) § 100g para 1 sentence 1 Code of Criminal 1 of the Code of Criminal Procedure concerned in
Procedure governs the collection of accordance with § 101 paragraph 4 sentence 1 Code
telecommunications traffic data for law enforcement of Criminal Procedure must be informed. Their judicial
purposes. Law enforcement authorities may then first, review, he may apply within two weeks after the
as stipulated in § 100g StPO aF access to traffic, notification (§ 101 paragraph 7 sentence 2 Code of
which have saved the telecommunications companies Criminal Procedure). In certain cases, a notification
on the basis of § 96 of the Act. In addition, Code of can be omitted (§ 101 para 4 Code of Criminal
Criminal Procedure § 100g now permits the collection Procedure), in other cases they may be postponed (§
of the Telecommunications Act § 113a to the data 101 para 5 Code of Criminal Procedure). A long-term
stored as a precaution. Against this target of the deferral under § 101 paragraph 5 Code of Criminal
constitutional process in a BvR 263/08 and 586/08 Procedure requires different from the waiver of notice
BvR 1. pursuant to § 101 paragraph 4 of the Code of
Criminal Procedure by a court.
62
Specifically, § 100g allowed para 1 sentence 1 § 66
113a Code of Criminal Procedure, referring to the Act § 100g Code of Criminal Procedure provides:
the law enforcement authorities without the
knowledge of the person concerned to bring traffic to 67
the extent necessary for the investigation of the facts § 100g
or the determination of the whereabouts of the
suspect is. This is true only when certain facts justify 68
the suspicion that someone as perpetrators or (1) certain facts justifying the suspicion that
participants in a crime described in the case of someone as perpetrators or participants

8
distinguishing between initial and extension
69 orders;
1st has a crime in the case of considerable
importance, especially one in § 100a para 2 77
shall offense committed, commit, in cases 3rd each underlying cause offense,
where the attempt is punishable, has distinguished by paragraph 1 sentence 1
attempted or prepared by an act or No. 1 and 2;

70 78
2nd an offense committed by means of 4th the number of past months, were
telecommunications, queried for the traffic data under paragraph
1, calculated from the date of the
71 arrangement;
Sun may be applicable) without knowledge
of the affected traffic (§ 96 para 1, § 113a 79
of the Telecommunications Act to the 5th the number of measures to be
extent necessary for the investigation of the unsuccessful because the requested data
facts or the determination of the were not available in whole or in part.
whereabouts of the suspect is. In the case
of sentence 1, No. 2, the measure is only 80
permitted if the investigation of the facts or 2nd Directive 2006/24/EC of the European Parliament
the determination of the whereabouts of the and Council, the implementation of the challenged
suspect in any other way would be futile regulations as they relate to law enforcement, serve,
and the collection of data in proportion to was adopted by the Council on the basis of Article 95
the significance of the matter is. The voting against Ireland and Slovakia (see Council
collection of location data in real time is document 6598/06 ADD 1 of 27 February 2006, p. 4),
only in the case of sentence 1, no one after the European Parliament one submitted by
allowed. France, Ireland, Sweden and the UK draft on Article
31 paragraph 1 letter c, and Article 34 paragraph 2,
72 point rejected b TEU - in the entry into force of the
(2) § 100a para 3 and § 100b para 1-4 Treaty of Lisbon, as amended (hereinafter: TEU aF) -
sentence 1 shall apply accordingly. supported the Framework Decision on the retention of
Notwithstanding § 100b para 2 sentence 2 telecommunications data (see Council document
No. 2 in the case is enough of a crime of 8958/04 of 28 April 2004) had (see parliamentary
considerable importance, a spatially and document P 6 TA [2005] 0348).
temporally sufficiently definite identification
of telecommunications, if the investigation 81
of the facts or the determination of the a) The Directive builds on the fact that
whereabouts of the accused would be telecommunications traffic data are a valuable tool in
difficult otherwise useless or substantially . the prosecution of criminal offenses, particularly in the
areas of organized crime and terrorism (which points
73 70-10 of Directive 2006/24/EC) and that some
(3) If not, the collection of traffic in Member States rules on have adopted the retention
telecommunications services provider, it is of such data, which differed greatly from each other
determined after the completion of the (see recital 5 of Directive 2006/24/EC). The fact
communication to the general regulations. established legal and technical differences affect the
internal market for electronic telecommunications,
74 because providers of telecommunications services
(4) On measures referred to in paragraph 1 with different requirements for the data to be stored
shall be prepared according to § 100b para and the storage time were facing (see Recital 6 of
5 of each year a table specified in the are: Directive 2006/24/EC).

75 82
1st the number of procedures in which b) The validity of Directive 2006/24/EC is both in
measures referred to in paragraph 1 have terms of their compatibility with Community
been carried out; fundamental rights (see Klesczewski, in: Festschrift
for Gerhard Fezer 70th birthday, 2008, p. 19 <24
76 and>; Klug / Mature, RDV 2008, p. 89 <91 et seq;
2nd the number of arrangements of Rusteberg, VBlBW 2007, p. 171 <176>; Westphal,
measures taken under paragraph 1, EuZW 2006, p. 555 <558 f.>; Zoeller, GA, 2007, p.
393 <410 ff >; Advocate General Kokott, Advocate,

9
18 July 2007 - Case C-275/06 - ECR 2008, I-271 must ensure that the stored data be disclosed only in
<276>, para. 82 - Promusicae -) and in relation to the certain cases and in accordance with national law to
unused basis of competence European Community the competent national authorities. Each Member
called into question (see grid / Schnabel, MMR 2007, State shall determine the method and thereby the
p. 411 <412 f.>; Jenny, CR 2008, p. 282 <285>; conditions for access to data in accordance with the
Klesczewski, in: Festschrift for Gerhard Fezer 70th requirements of necessity and proportionality must be
birthday, 2008 , p. 19 <22 et seq; Klug / Mature, RDV observed.
2008, p. 89 <91>; Leutheusser-Schnarrenberger,
ZRP 2007, p. 9 <11 et seq; Rusteberg, VBlBW 2007, 86
p. 171 <173 f.>; Westphal, EuZW 2006, p. 555 <557 Article 7 of Directive 2006/24/EC requires Member
f.>; Zoeller, GA, 2007, p. 393 <407 et seq). States to ensure compliance in regard to any data to
be retained with certain minimum standards of data
83 security. In addition, the rules remain the Directives
With Judgement of 10 February 2009, the Court 95/46/EC and 2002/58/EC applicable (see recitals 15
dismissed an action for annulment by Ireland under and 16 of Directive 2006/24/EC). ensure, under
Article 230 EC Treaty (see ECJ, Judgement of 10 Article 8 Directive 2006/24/EC, Member States that
February 2009 - Case C-301/06 -), based on the fact the stored data and all other necessary information
that the dominant purpose of the directive to facilitate can be forwarded immediately on request to the
the prosecution of criminal offenses and was competent authorities. Under Article 13 of Directive
therefore a legal basis, only the unanimity of the EU 2006/24/EC, Member States shall also ensure that
Treaty rules presuppose old version on police and measures to implement the provisions of Chapter III
judicial cooperation, in particular Article 30, Article 31 of Directive 95/46/EC providing for judicial remedies,
paragraph 1 letter c, and Article 34 paragraph 2, point liability and sanctions in view of the data under the
b EUV aF into account (see action came on 6 July Directive 2006 / 24/EG be fully implemented. No
2006 - Case C-301/06 - OJ C 237 of 30 September regulation shall adopt the policy as to who should
2006, p. 5). Here, the Court held expressly clear that bear the cost of data storage.
the decision does not have a possible violation of
Community fundamental rights as their object (see 87
ECJ, Judgement of 10 February 2009 - Case C- 3rd § 100g Code of Criminal Procedure has also for
301/06 -, para. 57). the Council of Europe Convention on Cybercrime
(Federal Law Gazette II p. 1242, hereinafter the
84 Convention on Cybercrime) importance (see
c) According to Article 1 paragraph 1 Directive Bundestag document 16/5846, p. 27 f. and 50). The
2006/24/EC, Directive aims to harmonize national Convention requires not only the creation of
rules on the obligations of providers of publicly substantive criminal law to combat computer crime,
available electronic communications services or of a but also to certain Procedural law rules. In particular,
public telecommunications network for the retention under Article 16 of the Convention, the competent
of telecommunications data to ensure that the Data authorities authorized to order the immediate backup
for the purpose of the investigation, detection and of traffic. Persons in whose control are such data
prosecution of serious crime, as defined by each shall be obliged to secure the short term and intact, to
Member State in its national law, are available. On allow competent authorities to obtain their transfer
adoption of the Directive, the Council to the Member (using the Quick Freezing). A similar provision was
States had to define the term "serious crime" in unnecessary for the legislature, however, because
Article 2 paragraph 2 of the Framework Decision on the data is kept frozen because of the comprehensive
the European arrest warrant and surrender data provided for in § 113a TKG already drawn up
procedures between Member States (2002/584/JHA ) (see Bundestag document 16/5846, p. 53).
of 13 June 2002 (OJ L 190 of 18 July 2002, p. 1)
referred to crime and crimes involving the use of 88
telecommunications facilities to consider appropriate 4th At the request of the complainant in the
(see Council document 6598/06 ADD 1, p. 4). The proceedings a BvR 256/08, the Constitutional Court
use of the data sets for a security role of the by order of 11 March 2008 adopted an interim
intelligence or not the policy. measure, could be after the § 113b sentence 1 No. 1
TKG restricted to the merits of the case only applied
85 (see BVerfGE 121, 1). By order of 28 October 2008 it
Under Article 3 para 1 Directive 2006/24/EC requires has extended that order so that could also be made
Member States to ensure that stored in Article 5 of by § 113b sentence 1 No 2 and 3 of the Act to the
Directive 2006/24/EC on data in a listed stock, which main decision only with restrictions for use (see
under Article 6 Directive 2006 / 24/EG a period of at BVerfGE 122, 120). In addition, the federal
least six months and a maximum of two years from government was ordered to report to each for
the date of the communication to be established. successive periods of several months on the practical
Under Article 4 Directive 2006/24/EC Member States implications of the Act provided in § 113a of the data

10
storage and interim measures for the prosecution. 94
The federal government is that for the periods 1 May The Federal Republic of Germany was also not
2008 to 31 July 2008, from 1 August 2008 to 1 March obliged to implement Directive 2006/24/EC. This is
2009 and 1 March 2009 to 1 September 2009 contrary to Article 95 and against community rights. It
complied with. violates the right to respect for private life and
correspondence under Article 8 ECHR and leads to a
disproportionate interference with guaranteed by
II Article 10 ECHR the freedom of expression. The
Directive should therefore not be used in Germany. At
least the constitutional complaint was therefore
89 admissible, because the challenged norms for an
1st The complainant in the proceedings a BvR 256/08 annulment by the European Court of Justice for a
dispute the § § 113a and 113b the Act. They allege preliminary ruling under Article 234 EC Treaty (now
the violation of Article 10, Section 1, Article 12, Article 267 TFEU), whose implementation is sought is
Section 1, Article 14, Section 1, Article 5 paragraph 1 considered in its entirety based on the fundamental
and Article 3 paragraph 1 GG. Which have joined with rights of the Basic Law could be. Keep the Court
the same arguments in the reference number 1 BvR Directive 2006/24/EC not to be invalid, the Federal
508/08 proceedings conducted about 34,000 other Constitutional Court to declare them as
complainants. kompetenzwidrig inapplicable and the challenged § §
113a and 113b TKG be discarded.
90
a) The constitutional complaints are admissible. 95
b) The constitutional complaints were well founded. If
91 it were a storage of data on stocks, which is
aa) The complainant, a) to 3) and 5) to 8) used as unconstitutional. It was now possible to determine all
academics, lawyers, managers, accountants and the communication partner of a person in the last six
chartered accountants and investigative journalists months. The storage of radio cells, will allow the
working in private and business various phone in their area, virtually uninterrupted motion
telecommunications services such as fixed line, profiles. The storage of the IP address it allows the
mobile, Internet services and e-mail accounts . It is future to track the internet usage of the past six
not reasonable for them to complain first before the months. It states that does not appear that the
competent courts against the telecommunications retention of an effect measurable clearance rate, or
companies. crime rates.

92 96
The complainant on four developing) and sells the aa) The challenged provisions violate Article 10
software for a commercial Internet anonymity service. paragraph 1 GG. Stored fell within the scope of the
The service will be provided in conjunction with other telecommunications secrecy. The Internet fall under
independent operators, will use its software on its Article 10 paragraph 1 GG in that connection, it would
servers. It also operates the complainant himself a be if used as a medium of mass communication. The
publicly accessible server anonymization. The with § § 113a, 113b TKG reasonable interference
anonymity service is provided as a result of the with the secrecy of telecommunications is not
challenged norms no longer economical. Her justified.
threatened the loss of their customers, because
customers because of the retention could no longer 97
trust to remain anonymous. In fact, the storage (A) Ensuring a proper criminal justice can not justify
requirement a profession coming. The storage the retention. In the area of cyber-crime issue in the
requirement it concerns itself, present and immediate, first place to assets. As far as telecommunications
because it can not be expected to deal with that by funds are used only as an aid in the commission of
ignoring the risk of fines or criminal penalties. conventional crime, legal protection of all types were
affected. The suitability of data retention to combat
93 organized crime or the prevention of terrorist attacks
bb) The admissibility of constitutional complaints is was assessed as very low.
not contradicted, that the contested rules
implementing the Directive 2006/24/EC. The federal 98
legislature is incompatible with the Directive General preventive effects of retention are not
2006/24/EC, where the stored data according to § expected to seriously. In the field of law enforcement
113a Telecommunications Act should not only be only decided milder powers of intervention are
used for serious crimes, but also security and to carry appropriate than in the defense against specific
out intelligence tasks. threats. Data that were obtained to prevent threats to
the highest legal protection should not be used to

11
prosecute minor offenses. A secondary use is
acceptable only if the collection of data and to the 103
purpose for which details are given of secondary use, Data retention also increases the risk of wrongly
is proportionate. Which is not taken into account. identifying measures to be suspended or unjustly
Advanced investigative powers of law enforcement condemned, and the risk of data abuse. Traffic could
authorities could increase the clearance rate at best be selectively used against unpopular persons and
minimal. Whether this would lead to a reduction in the were suitable for the control of individuals and groups
crime rate is extremely questionable. as well as for industrial espionage. Only the waiver of
effectively protect data from misuse.
99
The suitability of the retention of legal protection is 104
questionable. Although it prevents that The data retention would undermine the impartiality
communication processes are not allowed to essential to democracy of communication. The
understand why, because their circumstances are not protection of human dignity requires a degree of
saved. However, it is unclear how much demand unobserved communications, particularly in the
there is to supply data. In any case, a variety of context of special relationships of trust. The damage
communications data for billing purposes and that arises through the monitoring of the citizen,
evidence will stored for up to six months. Criminal would not offset by the resulting gain in efficiency.
groups took advantage of opportunities the other Data retention has reduced the development of
hand, anonymous prepaid plans such as countermeasures and could ultimately result in the
telecommunications or Internet cafes. amount of available data even telecommunications.
Other hand, the increasing digitization of the
100 decrease of the stored traffic data for billing purposes
(2) As compared to the less restrictive measure the same even without the retention of more than.
retention get the quick-freezing process into
consideration, which concerned the protection of all 105
stored traffic still a person. In very exceptional cases This is disproportionate, because the expected
is the arrangement of the storage of all available benefit in a significant imbalance to their
traffic data at a specific time possible (Global disadvantage for the individuals concerned and
Freezing). society as a whole stand. The objects of legal
protection is improved only in few cases. With a
101 reduction of crime levels is not likely. In view of the
(3) The severity of the procedure in Article 10 importance of other personal data for law
paragraph 1 GG derives from the fact that all persons enforcement threatens a dam break.
are affected, the telecommunications services to the
public would take to complete. The storage 106
successes without suspicion. The mere possibility bb) The contested legislation was also contrary to
that data may be needed for purposes of law Article 12 paragraph 1 GG. , § § 113a and 113b TKG
enforcement or security does not justify the accessed disproportionately into the professional
intervention. The data retention enables the creation freedom of commercial providers of
of telecommunications and motion profiles and have telecommunications services and the professional
a great spread. This is all the more weighty than freedom of nationals of confidence professions.
telecommunications taking place in the expectation of
complete confidentiality. 107
So it affects the relationship of trust between lawyer
102 and client, where it can be revealed by analysis of
A generalized, overall supervision in the form of a telecommunications traffic, the attorney-client
comprehensive coverage of telecommunications relationship. The retention of the frighten
links, as it represents the retention is, even to defend telecommunicative contact with specialized
the greatest dangers unconstitutional. The probability consultants, because it far-reaching conclusions on
that the stored data would be needed later to security the health and mental status, religion or financial
or law enforcement purposes, be negligible and could circumstances could be drawn. Journalists threatened
not justify such a serious intervention. The data with the loss of informers. This negative effect
retention enables personality images with an prevails over any measurable public interest. Given
unprecedented accuracy. The communication of the small number of cases in which it depended on
content data are extremely meaningful. Access to the communication by and with professional secrets, the
circumstances of the telecommunications weigh no needs of Legal protection are guaranteed without
less difficult than that on the communication content. data retention.
It enables comprehensive personal and behavioral
profiles. Traffic data provided a wealth of information 108
on social relations.

12
As regards the retention of the service violates the It also violates Article 3 para 1 Basic Law that,
proportionality requirement. A scheme under which although the use of recorded information services on
the consequent investment to be repaid does not the Internet, but not that of traditional mass media
exist. In the absence of adequate compensation such as magazines, books and television. That mass
arrangements on cost management, processing and communication is particularly of injurious on
transmission of inventory data to the competent telecommunications networks, there is no conclusive
authorities, the telecommunications company had evidence. An unjustified difference in treatment is
Inpflichtnahme but unreasonable. Without adequate also that the retention does not cover non
compensation to them should the performance of telecommunicative covers computer use. Similarly,
duties of law enforcement and security functions to be Article 3 para 1 Basic Law is violated because the
saddled with a core of the state. legislature had not justified apart from the choice of
milder agents such as technical, structural and
109 enlightened preventive measures or the quick-
cc) Unless previously used facilities by freezing method.
telecommunications service providers as a result of
data retention could no longer be used, accessed, § § 114
113a and 113b TKG also enteignungsähnlich in the Nor were the difference in treatment between the
property guarantee of Article 14 paragraph 1 telecommunications as electronic information and the
sentence 1 GG. This is not compatible without postal system embodied as a detached exchange
adequate compensation with Article 14 paragraph 1 information, the unequal treatment of
GG. telecommunications undertakings compared with
postal companies, the unequal treatment of the use of
110 telecommunications services to access to other
dd) § § 113a and 113b TKG also contrary to Article 5 services and the unequal treatment of
paragraph 1 GG. They violated the freedom of telecommunications companies over other companies
expression, information and broadcasting freedom. such as banks and airlines constitutionally justified.
The more expensive the telecommunications data
retention. This force less financially citizens, 115
businesses and organizations to restrictions. In Also violates the equal treatment of small
addition, providers and users would be deterred from telecommunications companies to the general
staatskritischen particular information. The impact of principle of equality, because this was a group of
information stand here does not preclude that not typical cases without sufficient cause be charged
referring websites because of § 113a much more.
Telecommunications Act should be saved. Provider of
Telemedia saved often in violation of the Telemedia 116
Act, the IP addresses of users. Then the public not be justified before Article 3 paragraph 1 GG
authorities had to § 15 paragraph 5, sentence 4 in finally, the enslavement of private
conjunction with § 14 para 2 TMG access. telecommunications companies without
Expression, information and broadcasting are compensation for public purposes. The criteria for the
constitutive of a liberal democracy. In view of the admissibility of a special levy to finance function are
effect on overall social information and its only limited not met. The prevention of threats and the
value in the retention grab a disproportionate Article 5 punishment of crime are the general tasks that need
paragraph 1 GG. to be funded from general taxation and not the
companies concerned and their customers are likely
111 to be imposed.
ee) § § 113a and 113b TKG eventually hurt the
general principle of equality under Article 3 paragraph 117
1 GG in several respects. 2nd The complainant in the proceedings a BvR
263/08 contact except against § § 113a and 113b
112 against TKG § 100g Code of Criminal Procedure,
This applies first of all, as far as successes only for insofar as it relates to the collection of stored data in
the exchange of information via telecommunications accordance with § 113a TKG. They allege a violation
networks, but not for the spatial-direct exchange of of Article 1, Section 1, Article 2 para 1 in conjunction
information, storage of communications data. Given with Article 1, Section 1, Article 10 paragraph 1 and
the high intensity of intervention data retention that Article 19 paragraph 2 GG.
differentiation is not particularly justified since in the
field of spatial-direct communication often would find 118
other evidence. a) The constitutional complaints are admissible.

113 119

13
aa) The complainants are lawyers, a university police and judicial cooperation in terms of Article 29
professor, a journalist, a former president et seq TEU aF
Finanzgericht, a student and member of the German
Bundestag, or Parliament of a country. The 127
complainant to 3) is now Minister of Justice. bb) The retention under § § 113a and 113b the Act
infringes on human dignity. In a free society should
120 not everyone who use a means of communication as
Each of them take multiple providers to complete. a potential criminals or troublemakers are treated.
They used private, freelance or their political activities give a free society without trust in a confidential
fixed line, mobile, Internet access and e-mail communication is not there. There must be a core
accounts and are therefore affected by the retention area of personal life be left in which the individual is
of telecommunications data. free from government monitoring, control or influence.
With the retention of state erect an infrastructure to
121 destroy the confidence of citizens in a free
bb) That the retention successes even by the private communication and can enable further monitoring in
sector was open to the admissibility of constitutional future. This is contrary to human dignity and the
complaints against not. For they will immediately principles of constitutional democracy.
ordered by the statutory scheme of § § 113a and
113b the Act. 128
cc) § § 113a and 113b TKG disproportionately
122 attacked in the right one to informational self-
cc) It is not reasonable for the complainants, pursuing determination under Article 2 para 1 in conjunction
the filing of constitutional complaints in each case the with Article 1 paragraph 1 GG.
ordinary courts.
129
123 The data provided for in § 113a TKG verdachtslos
dd) The constitutional complaints are certainly successes and, in general. The data made it possible
allowed, unless the legislature in the implementation to create personality profiles. The stay of the user of a
of Directive 2006/24/EC is contrary to national mobile phone let the evolution over the last six
constitutional law, although the remainder of his travel months. There is no provision for the cancellation of
permit implementation of its attention, or if it went the core of the private life of data concerning a hit.
beyond the rules prescribed in the directive. This is The providers are not required to document the
regarding storage purposes, the use of the data transfer and that the transmitted data to be marked.
justifying crimes, the elimination of precise rules and
procedures of the agencies verwendungsberechtigten 130
the case. TKG § 113b does not satisfy the principle of certainty.
Use only as a flat rate of prosecution of criminal
124 defense serious threats to public safety and the
ee) In addition to Directive 2006/24/EC is ultra vires performance of intelligence tasks are mentioned. It is
and could in Germany, which has no legal effect. Also not enough that the further specification of the
decide whether an act of the European Community is intervention in order to access the respective
contrary to Article 1 GG, and could therefore claim in fachrechtlichen standards successes. For the
the domestic law does not apply solely by the Federal fundamental intervention successes already with the
Constitutional Court. A submission to the European storage of the data. According to the requirement of
Court is not initiated. Insofar as the Federal clarity, the storage must be determined precisely
Constitutional Court is not entitled to consider, decide purpose. Because the countries are solely
on the validity of Directive 2006/24/EC itself, a responsible for the access arrangements, the use of
submission to the European Court is being the data is completely overwhelming.
stimulated. The Directive 2006/24/EC was adopted
without any legal basis and with Community 131
fundamental rights, in particular Article 8 ECHR, The surgery stand in view of its gravity in proportion
incompatible. to the recoverable value. Data retention let not expect
a significant gain for the fight against crime.
125b) The constitutional complaints were well
founded. 132
dd) The contested provisions also violate the secrecy
126 of telecommunications under Article 10 of the Basic
aa) Directive 2006/24/EC is invalid. It was adopted on Law in its essential content.
the basis of Article 95, although not the establishment
or functioning of the subject have, but measures of 133

14
ee) Decision latitude, which would leave the Directive Directive 2006/24/EC is invalid, the Court finds the
2006/24/EC, are not filled in the Constitution. § 113b invalidity of the policy or if a review of the
TKG go beyond the objective of the directive, if the competence of the European Community to adopt the
stored data would be provided to all intelligence directive by the Federal Constitutional Court,
purposes. § 100g Code of Criminal Procedure defines exceptionally even am considering. A valid template
the range of offenses that could justify the retrieval of can be based on a particular violation of Community
stored data, not clear. It remains open when an fundamental rights.
offense is also in the case of considerable
importance. In contrast, it in fact - unless you 138
consider relevant Community law at all - in fact and is b) The constitutional complaints were well founded.
standard for any future power separately to clarify The challenged provisions violated Article 10
whether their purpose was defined by European law paragraph 1 GG. This protects the confidentiality of
mandatory and whether it reflects a national the circumstances of the communication process. In
constitutional law. § 100g Code of Criminal Procedure its scope of protection therefore fell under § 113a
leaves the retrieval of traffic data for each offense para 2 TKG to memorized telephone traffic data and
committed by means of telecommunication to go so according to § 113a para 3 and 4 of the Act to save e-
far and repel the purpose of the directive, "terrorist mail traffic and Internet data. The fact that the Internet
offenses. and mass communication takes place, the traditional
freedom of broadcasting had been allocated to that
134 State does not. That individual communication could
3rd The complainant in the proceedings a BvR be conveyed is sufficient, to trigger the protection of
586/08 dispute the § § 113a and 113b and TKG § fundamental rights.
100g Code of Criminal Procedure. They allege the
violation of Article 10 paragraph 1 and Article 2 para 1 139
in conjunction with Article 1 paragraph 1 GG. The regulations on data retention intervened in the
scope of protection of Article 10 GG. The state
135 intervention will begin with the traffic data storage
a) The constitutional complaints are admissible. The requirement of § 113a Act. He'll continue with the
complainants - Members of the German Parliament approved in § 113b TKG transmission of traffic data
and members of the group of Alliance 90/The Greens, to government authorities. Other acts of interference
who are also part-time as a lawyer or doctor were were the evaluation and use of data by the authorities
active - even, direct and present in their right under receive information and the transfer of data to other
Article 10 paragraph 1 GG, and their right to authorities or private.
informational self-involved.
140
136 Sufficiently is intended § 100g paragraph 1 No. 1
Nor can the scheme, as the Directive 2006/24/EC Code of Criminal Procedure, as it has in crime in the
leave considerable scope for implementation, are case of major importance and concretizing the 100a
reviewed extensively by the German fundamental in para 2 Code of Criminal Procedure § offenses
rights. defined types are mandatory, only the data to described refers. Critical to assess whether § 100g, 1
store categories and, with the minimum storage No. 2 Code of Criminal Procedure with regard to §
period of six months. Implementation scope existed 100g para 1 sentence 2 of Criminal Procedure. When
regarding the storage and uses the access-points, the the data collection stand in proportion to the
access conditions and procedures for the allocation importance of the matter, except for citizens not
and data security requirements. Where Member identified with the necessary clarity. The problem is
States provide that, in the limits of Article 15 para 1 the determination of § 113b Act. In the area of
Directive 2002/58/EC to the security and the security and intelligence was not foreseeable, are
fulfillment of the tasks of the intelligence services use likely to access the extent to which enforcement
other than law enforcement, they were subject to full agencies to supply data.
constitutional scrutiny. The determination of serious
crimes for prosecution, the retention successes lie in 141
the hands of the Member States. Article 7 of Directive Data retention also contrary to the principle of
2006/24/EC lays down minimum requirements, the proportionality. Effective law enforcement is indeed a
more extensive data protection requirements in the legitimate purpose. Also might the suitability and
national constitutional law is not blocked. Finally, the necessity of data retention does not deny. The Quick-
financing of the retention in the Directive is not freezing procedure was not equally well suited,
regulated. because it was irrelevant, if not traffic or no longer in
existence. Data retention is, however inappropriate.
137 Traffic could be significant conclusions about the
A complete examination of the constitutional communication or movement behavior. Because of
provisions on data retention is also possible if the their automatic analyzability they are for computer

15
surveillance methods and strategic monitoring by the authorized persons would not further concretized.
intelligence services are particularly suitable. They The data will not be sufficiently guaranteed. The
provided investigative leads and allowed the social, weight of the intervention is not counterbalanced by
political or economic relationship networks to its value. Particularly in the case of organized crime
reconstruct. Comprehensive personality profiles could and terrorism, he was the least, since refusing to pay
be created. Particularly distressing factors were the the perpetrator the power to subvert the storage,
Verdachtslosigkeit of storage and their extraordinary which is easily possible. The effects of storage on
spread. Account will also be the effect on overall democratic discourse and the dangers of data
social behavior and the democratic discourse and breaches could not be sufficiently reduced by limiting
Missbrauchsbefürchtungen. the uses.

142
§ 100g StPO go about implementing Directive III.
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 146
committed by means of telecommunication. Already a The constitutional complaints to the Federal
mean of crime for access to the data store. These Government, the Federal Administrative Court, the
systems increase the risk of being exposed to Bundesgerichtshof, the Federal Commissioner for
unwarranted suspicion and thus the object of Data Protection and Freedom of Information and Data
investigation measures to be onerous. The data Protection on behalf of the countries have taken the
collection was made in secret. § 100g para 2 in Berlin Commissioner for Data Protection and
connection with § 100b and § 101 Code of Criminal Freedom of Information status.
Procedure grant only a posteriori, weakened by a
restrictive practice receive legal protection. The 147
effectiveness of the judges of title was controversial. 1st The federal government holds the constitutional
The existing access facilities are usually been complaints inadmissible in part, in any event,
sufficient. In consideration of alternative investigative unfounded.
methods such as the quick-freezing procedure falls
the adequacy assessment is negative. 148
a) the constitutional complaints are inadmissible if
143 they were directed solely against the § § 113a and
§ 113b sentence 1 No. 2 TKG opens up access to 113b the Act.
data stored anlasslos already substantial danger to
public safety. Intelligence surveillance activities 149
carried out in advance of specific threats at aa) The subject of the verification of competence of
significantly reduced remedies. give restrictions on the Constitutional Court, provided they comply with
the interception of Members not. Given their the mandatory requirements of the Directive
Vorwirkungen on the behavior of citizens and the 2006/24/EC. As far as regulatory scope existed, the
democratic discourse, the rules were unreasonable in federal law based its implementation as provided for
§ 113b sentence 1 No 2 and 3 of the Act. in Directive 2006/24/EC regulatory minimum. An
erupting Act lies against not because it's not about
144 the division of powers between the European
Professional secrets are not protected separately. Community and the Member States, but go only to
Especially prejudicial in this act to physicians and those within the European Union. At European level,
operating exclusively as a criminal defense attorneys finally, there is sufficient protection of fundamental
from. It also lacked sufficient data structure rights. A violation of human dignity is also not
requirements for service providers. This entails apparent.
considerable risks of abuse. Even less appropriate is
the use of data by private enforcement of civil claims, 150
as it permits a sentence of § 113b clause 2 the Act. bb) The complainants were not given the primacy of
As could be determined in this way only the owner of Community law beschwerdebefugt. § 113b sentence
connections by the subscriber does not necessarily 1 No. 1 Telecommunications Act and § 100g Code of
agree with the Internet users, whether in pursuit of a Criminal Procedure did not go beyond the limits of the
much larger range of onlookers expected. Directive 2006/24/EC storage purpose. In the
definition of serious crimes are also considered
145 appropriate means of telecommunication facilities
The obligations under § 113a para 10 TKG to follow committed crimes. Directive 2006/24/EC to let the
in the telecommunications sector due diligence and extension of the storage order to use the security and
through technical and organizational measures to intelligence performance of work. § 113b sentence 1
ensure that the data are accessible only by specially No 2 and 3 of the Act in so far contains only one other

16
legal use provision. This was however not alone in The analysis of traffic data was essential for the
the constitutional process rügefähig because they prosecution. In particular, it could be evidence of
affect fundamental rights no matter who goes on by crimes committed when, for stays of suspects in
Directive 2006/24/EC even arranged complaints. crime scene area, are obtained for forward and
Additional complaints could only result from power Nachtatverhalten of suspects to connections among
standards, approved to continue the use of stored the suspects, along escape routes and to identify
data. TKG § 113b does not contain such provisions. further suspects. Especially for the prosecution of
There regulated purposes rather restricted one, only drug crime, the provision of location data is important.
the potential data uses. , § § 113a and 113b TKG had Traffic will come to the verification of suspects or
no further berufsregelnde trend in the occupations submissions in determining the whereabouts of
pursued by the complainants as a lawyer or a accused importance. The elucidation of the
journalist. Article 14 of the Basic Law is not affected. distribution of child pornography images on the
The storage requirement not shorten a right to Internet can practically only be based on traffic data.
dispose of the question, but the EHRC an When tied or professional knowledge of the crimes
independent behavior of duty. A violation of freedom committed on communication skills for the
of expression is excluded from the outset. The investigation of organizational structures and serial
storage in accordance with § 113a TKG was offenses is essential. Against the appropriateness of
meinungsneutral. the data also speak to the possibility of bypassing
them.
151
cc) The constitutional complaint by the complainant 157
on 4) in a procedure BvR 256/08 foundered on the TKG § 113a is also required. The quick-freezing
principle of subsidiarity. It is not clear that legal process was not as effective. It could hold only those
protection not by the specialized courts was possible. data that are stored in any way. It is useful only if it
relates to a gegenwartsnahen facts.
152
b) In any case, the constitutional complaints were 158
unfounded. Finally, § 113a TKG was also appropriate. The
Anlasslosigkeit endorse the appropriateness of the
153 store, not from the outset. Your say nothing about the
aa) § 113a TKG is constitutionally unobjectionable. spread concrete related stress. The collection of
personal data would be retained not automatically
154 unconstitutional. The data would be stored by private
(A) Scheme interference in the protective scope of companies for a particular purpose, and only because
Article 10 GG. It, however, go only to a requirement of further powers by the state standards noted. The
for private storage of certain data with the aim of stored data according to § 113a TKG were indeed to
enabling a subsequent access. Thus, § 113a of the draw conclusions about the personality of the person
Act differs categorically state power standards to use concerned, but are of limited sensitivity. They do not
the gathered data. TKG § 113a constitutes a concern the content of the communication and going
moderate interference with Article 10 paragraph 1 GG in terms of their personality does not have relevance
dar. He only effect that the data for half a year, a also to other existing schemes to save data. The
claim for cancellation of those affected were store also open successes. The obligation to maintain
withdrawn. The data do not relate to communications information about whether the German law of the
content. They came only after an additional qualified Commercial Code, the Tax Code or the Banking Act
power standard in the knowledge area of the state. known. Constitutional limitations have developed the
Finally successes as storage is no secret. The data to Federal Constitutional Court only to query the facts.
be stored and the duration of storage are defined The store itself is, moreover, but probably not too
clearly and conclusively. unreasonable. However, should the data query in a
qualified way be limited. The storage period of six
155 months leave by the conditions justify the persecution
Purpose of § 113a TKG is to adapt the fight against of specific crimes. An intimidating effect is not
terrorism and serious crime in the conditions of produced by § 113a Act. Decisive was not the
modern communication technologies. TKG § 113a is subjective perception of the norm addressees, but a
suitable. He prevented that § 100g Code of Criminal true understanding of standards.
Procedure by the rise of flat rate tariffs and the
related decline of stored data in accordance with § 96 159
of the Act and by the steady increase in the use of the (2) the storage for the telecom service provider costs
Internet by criminals lose his footing. hurt neither Article 12 nor Article 14 GG. Article 14 of
the Basic Law does not confer any general protection
156 of assets. TKG § 113A but neither the substance nor
the organization of the rights of the complainant

17
relates to their companies. The information given for TKG was not to be subject to the highest-threshold
cancellation of technical facilities are unsubstantiated. immediate concern for legal rights. Judge
The freedom of occupation is not affected. The reservations were to be settled in the respective
plaintiffs were to practice their profession without the enabling rules. The transmission of data to perform
challenged regulation is not different. Only the service intelligence functions under § 113b sentence 1 No. 3
providers are burdened with additional duties. The TKG was not objectionable. Within certain limits, even
use to perform a public duty to redeem himself or a anlasslose control of telecommunications content
from any compensation. for intelligence purposes had been assessed as a
constitutionally permissible (reference to BVerfGE
160 100, 313 <358 et seq).
(3) The scheme was compatible with Article 3
paragraph 1 GG. Telecommunications and direct 163
communication are not comparable. Direct cc) was also the Constitution, Code of Criminal
communication and electronic communication could Procedure § 100g. The possibility of criminal
not be saved to the same extent. The difference in proceedings traffic query in its present form is
treatment between telecommunications and postal recognized. A comparison, more intensive
services was justified. Slow postal communication is intervention in the telecommunications secret lay in
for use to commit criminal acts less suitable than accessing stored traffic data in accordance with §
telecommunications. Large and small 113a TKG not because more data were available.
telecommunications companies would not be treated Given the content compared with the monitoring of
differently. Before unequal economic impact of the telecommunications traffic data collection was the
relevant protected liberties, not the general principle lower weight it logically, if Code of Criminal Procedure
of equality. A special levy the equality principle does § 100g less stringent requirements on the
not lie. admissibility of data collection in places as § 100a
Code of Criminal Procedure.
161
(4) The constitutional requirements for data security 164
are met. § 109 para 1 of the TKG requires the service As far as § 100g para 1 No 1 is linked to the criminal
providers, appropriate technical means or other offenses of the Code of Criminal Procedure § 100a
measures taken to ensure the privacy, protection of para 2 Code of Criminal Procedure and also in case
communications and protection of of an offense requires considerable importance, the
telecommunications and computer systems against Federal Constitutional Court have recognized this as
unauthorized access by employees and third parties. a sufficiently precise. Also § 100g, 1 No. 2 Code of
Operators of telecommunications systems are Criminal Procedure was safe. The choice of the
required under § 109 para 3 of the TKG, the Federal means of law enforcement depends on the ability to
Network Agency to submit a security plan that will educate the offenses in question at all. The deceptive
describe the technical arrangements and other § 100g para 1 No 2 and § 100g para 1 sentence 2
protective measures to meet the obligations for data Code of Criminal Procedure bill, by charging for the
security. It should update and rectify the request of crimes committed by means of telecommunications
the Federal Network Agency. The service providers traffic demand at the reservation alternatives and the
would have to be observed according to § 113a para lack of identification of another proportionality test. An
10 of the Telecommunications Act in the even further restriction of access opportunities in
telecommunications sector due diligence and to places free for a whole range of communications by
restrict access to data through special appropriations. law enforcement, even though the criminal justice
Violations of the secrecy of telecommunications and enjoying constitutional status. § 100g Code of
data protection requirements are finable to § 148 Criminal Procedure does not violate the core area of
TKG criminal or § 149 para 1 No 16-18 Act. § 115 of private life. The telecommunications traffic concern
the Act authorizes the Federal Network Agency to that despite the ability to create with the help of
enforce the data protection regulations. Finally, the communication and movement profiles, not in
companies subject to the controls of the Federal intensive manner.
Commissioner for Data Protection and Freedom of
Information. 165
2nd The Federal Administrative Court in the
162 contested legislation provides for an interference with
bb) § 113b, too, the Act was constitutional. It restricts Article 10 paragraph 1 GG, whose justification is
the storage purpose and is sufficiently defined. The doubtful. The sentence in § 113b 1 TKG applications
use of data directed to other statutory standards, the listed are so broad that, in the time of storage is
determination of a separate examination needed. As foreseeable, should be used for what purpose the
compared to the content monitoring of data. It could, violation of the prohibition on the
telecommunications lesser surgery, the use of the collection of personal data to be retained vague or not
data security according to § 113b sentence 1 No. 2 yet determinable are purposes. The fundamental

18
restriction is also of no small weight. The storage the regulations were contrary to Article 8 against and
requirement covers data with high personal 10 ECHR.
relevance, the major conclusions about the
personality and personal circumstances of the user, 168
its social environment and its movement behavior and The authority for the retention was not sufficiently
the nature of the content of communication was specific. The uses are not limited to achieve precise
allowed. Possible was the creation of personal and limited. The prosecution of criminal activities in
profiles. The data could have serious consequences the field of terrorism and organized crime will be
in the event of criminal proceedings for the individual. improved not sustainable, because the affected
Misuse of data is possible. The store has an groups of perpetrators had many opportunities to
enormous breadth. Their spread could cause a circumvent data retention.
significant intimidation effect. On the other hand, the
data would be deleted in many cases without having 169
been sent to government agencies. The uses are not Formed the communication traffic behavior from more
limited to the protection of high-level of legal intense. Particularly sensitive are data that relate to
protection. § 113b sentence 1 No. 2 TKG was not communication with professional secrets and for
clear from which legal rights might justify the use of which it therefore needed differentiating rules. The
data. § 113b sentence 1 No. 3 Telecommunications sensitivity of the data to be retained due to technical
Act refers to a variety of federal and Land job innovations to take on. Traffic allowed to draw
descriptions. Perhaps the data are thus intended to conclusions about behavior and interests as well as
protect interests which could not justify lying in the far-reaching insights into the movement and
engagement of their storage in the secrecy of communication behavior. They reflected the social
telecommunications. network against the person concerned. The
membership of parties, trade unions, or citizens'
166 groups could become clear. Together with information
3rd The Federal Court has by the Chairman of the on the profession or the business activity of the other
first Criminal and one of the investigating magistrate party would result from traffic draw conclusions as to
pointed out that had been with crimes committed by call content. Time and frequency of connections
means of telecommunication data, the identification of allowed conclusions on the intensity of contacts. It
the perpetrator would have made so far in the time of could be comprehensive personality and sociograms
request for information regularly deleted already. In images are created. Confidence in the use of modern
terms of Internet conclusions were excluded on the means of communication is affected by the term data
contents of experience. Because of the customary retention. Risks of abuse should be excluded to the
practice of flat rate contracts, the data line is often 24 extent possible by law. The Telecommunications Act
hours a day would be maintained. In this case, are requires neither a separated storage of the stored
derived from the stored data in most cases not even data according to § 113a TKG still safe to encryption.
information on the frequency and duration of Internet It contains no provisions for the award of access
usage. In e-mail traffic, particularly the storage of the permissions for logging of accesses and the
IP address is necessary to have before the examination of historical data on individual requests.
introduction of data retention only under certain
conditions on the end of the connection also may be 170
stored. Since the IP addresses had been deleted in Was far too inadequate to use the data for the
the past few years after one to two days, a purpose of prosecution. Access to data should at best
prosecution of property crimes or acts of child abuse stocks for the prosecution of serious crimes are
is usually not have been possible. Without retention concerned. The conditions can be waived under
on the internet for criminals, there is hardly any risk of which a notification, are too vague and not afforded
detection. There arises a legal vacuum. The the required individual assessment. Moreover, a
President of the Federal Court pointed out that the judicial review of the waiver of notification is not
traffic would only indicative effect and in need of provided for adequately. Regarding the use of stock
support through further investigations. Areas of social data security and compliance intelligence tasks is a
behavior were not already so go areas, as this would, risk of too low a threshold retrieval. Inappropriate is
apart from their preventive monitoring. also that § 113b TKG, the use of the Act under §
113a stored IP addresses to identify the person
167 behind it according to § 113 TKG allows, since it is
4th The Federal Commissioner for Data Protection also permissible for the prosecution of offenses.
and freedom of information keeps the data according
to § 113a anlasslose the Act unconstitutional. From 171
their unconstitutionality follow the rules of § 113b of 5th The Berlin Commissioner for Data Protection and
the transmission Act. § 100g Code of Criminal freedom of information provides by § § 113a and
Procedure is unconstitutional because the use was 113b the Act violated the secrecy of
defined threshold unreasonably low. At the same time telecommunications in its essential content. In

19
addition, these regulations were contrary to the Protection and Freedom of Information, the Berlin
prohibition of retention for undefined or not yet Commissioner for Data Protection and freedom of
identifiable purposes. In any case, but they allowed a information, as expert resource persons, Prof. Dr. Dr.
disproportionate restriction of communications. In hc Hans-Jörg Albrecht, Constanze Kurz, Prof. Dr.
addition, there is no specific purpose. § 113 sentence Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr.
1 sentence 2 TKG, the use of the stored traffic data Alexander Rossnagel, Prof. Dr. Christoph Ruland, the
for an exchange of information pursuant to § 113 Federal Association for Information Technology,
TKG enables police, at all. Any misuse of data by Telecommunications and New Media (BITKOM), the
private is difficult to prevent. § 113a para 6 TKG Association of German Internet Economy (eco), the
prevent the user to move anonymously with the help Association of Telecommunications and Value-Added
of anonymous services on the Internet. The eV (VATM), the Association of German Publishers
protection of special relationships of trust remain and Booksellers Association and the Federal
excluded. Given the seriousness of the fundamental Association of Music Industry
procedure of the Quick-freezing procedure had to be
considered as an alternative.
B.
172
6th The expert respondents Constanze Kurz, Prof.
Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. 175
Dr. Alexander Rossnagel, Prof. Dr. Christoph Ruland, The constitutional complaints are allowed.
the Federal Commissioner for Data Protection and
Freedom of Information, the Berlin Commissioner for
Data Protection and Freedom of Information , the I.
Federal Ministry of Justice, composed of Federal
Ministry of Economics and Technology and the
Ministry of the Interior, the complainant in the 176
proceedings a BvR 256/08 and 263/08 a BvR and the 1st The complainants allege a violation of the legal
Federal Association for Information Technology, provisions of Article 10 paragraph 1 GG. They use
Telecommunications and New Media (BITKOM), the various telecommunications services such as private
Association of German Internet Economy (eco) and and business telephone services in particular,
the Association of Telecommunications and Value- services of electronic mail and the Internet, and claim
Added eV (VATM) have spoken on technical, factual to have been affected by the storage and intended
and legal questions of the court. These concern the use of their connection to their fundamental right to
communication traffic, the data retention obligated, by maintenance of the telecommunications secrecy.
means of telecommunications crime committed, the Since Art.10 para 1 Basic Law protects the
exchange of information pursuant to § 113 TKG, confidentiality of the circumstances of
security of supply data against unauthorized access telecommunications operations (see BVerfGE 67, 157
and possible legal embodiment of the use of this <172>, 85, 386 <396>, 120, 274 <307>; established
data. In the opinion of the Ministry of Justice have case-law), such a violation by the contested
been involved through the Federal Ministry of legislation possible.
Economics and Technology, the Federal Network
Agency and the Federal Ministry of the Interior, the 177
Federal Criminal Office, the Federal Constitution and The contested provisions concerning the complainant
the Federal Prosecutor. also directly, and present themselves. Although
directed the storage requirement of § 113a TKG not
173 to the complainants concerned as a user, but to the
7th In addition, the association of users of commercial service provider. However, these are, without a
telecommunications eV (eV TELECOM), the decision space (see BVerfGE 107, 299 <313 f.>)
Association of German Publishers and Booksellers strictly for storing the data of the complainant
Association and the Association of Music Industry committed. TKG § 113a thus leads directly to a store
Association expressed its opinion. and present data of the complainant for the one
sentence in § 113b TKG intended purposes.

IV 178
On a direct Selbstbetroffenheit lacking with respect to
§ 113b § 100g Code of Criminal Procedure and the
174In the hearing, have expressed themselves: the Act not because these rules only develop on the
complainant, the Federal Government, the BKA, the basis of further acts of enforcement effects and it is
Federal Network Agency, the Bavarian State uncertain whether and to what extent just data, the
Government, the Federal Commissioner for Data complainant will be affected. If the person obtained

20
no knowledge of the law enforcement records, each case as indispensable requisite of fundamental
sufficient information to demonstrate to be touched rights is to respect essentially similar, especially since
with some probability of such measures. Is relevant the essence of fundamental rights generally
for this particular whether the measures have a large guaranteed (see BVerfGE 73, 339 <387>, 102, 147
spread and third parties also can enter by chance <162 f.>). These principles also apply to national
(see BVerfGE 109, 279 <307 f.>, 113, 348 <363>, laws, the mandatory requirements of a directive
120, 378 <396 f.>). Thereafter, the complainants implemented in German law. Constitutional
have expressed their own concern and immediate complaints that are directed against the use of
enough. Given the substantial storage period of six binding in this sense, the European Union law, are
months and the large spread of the collected data, it strictly prohibited (see BVerfGE 118, 79 <95>, 121, 1
is not unlikely that in the transmission and use of the <15>).
data according to § 113b § 100g Code of Criminal
Procedure and the Act also affects people who have 182
given no cause for appropriate action. Statement, by The complainant may relate to the fundamental rights
the complainant would have to accuse of crime in of the Basic Law, however, so far called as the
order to document the Selbstbetroffenheit not legislature in implementing Union law, freedom has,
necessary (see BVerfGE 109, 279 <308>, 113, 348 that is, by Union law is not determined (see BVerfGE
<363>, 120, 378 <396 f.>). Nor should they prove to 121, 1 <15>). In addition, the present constitutional
be responsible for significant threats to public safety complaints are also permissible if the challenged
or to develop activities that affect the task of the provisions are based on policy rules that have a
intelligence cycle. mandatory content. The complainants claim that it
lacked the Directive 2006/24/EC on a Community
179 basis of competence and it is contrary to European
2nd The constitutional complaint by the complainant Grundrechtsverbürgungen. They strive, therefore,
on 4) in a procedure BvR 256/08 is also admissible among other things, without that they could do this
as regards Article 12 paragraph 1 GG, where she immediately, given their constitutional complaints
objects to the storage requirements associated with against the implementation of law directed against the
the technical and financial burdens. As an anonymity specialized courts, a submission by the Federal
service provider, which also operates also a publicly Constitutional Court to the European Court to give
accessible web server, they meet the requirements of preliminary rulings under Article 267 TFEU (formerly
§ 113a in principle the Act, are so far without Art 234 TEC), the Directive declares void and do so
compensation or compensation rules provided. Since the way clear for a review of the challenged
the failure to comply with these obligations is armed provisions in the light of German fundamental rights.
with a fine (see § 149 para 1 No 36, para 2 TKG), it is In any event, in this way an examination of the
also not reasonable, in violation of § 113a TKG to challenged provisions in the light of the fundamental
await execution file and then search against this legal rights of the Basic Law in accordance with the
fachgerichtlichen (see BVerfGE 81, 70 <82>). She is request of the complainant is not excluded.
so affected by the storage obligation directly, and
present themselves in their professional freedom.
C.
II
183
The constitutional complaints are justified in essence.
180
The challenged provisions violate the complainants in
The constitutional complaints are not inadmissible to
their fundamental right under Article 10 paragraph 1
the extent the challenged regulations adopted
GG. A submission to the European Court of Justice
pursuant to the Directive 2006/24/EC are.
can not be considered because it is not possible on a
priority of Community law matters. The fundamental
181
rights guarantees of the Basic Law are a - different
However, the Federal Constitutional Court's
layout - implementation of Directive 2006/24/EC does
jurisdiction exercised on the applicability of
not prevent.
Community or now Union law, which is the basis for a
behavior of German courts and authorities within the
184
jurisdiction of the Federal Republic of Germany
The constitutional complaint is unfounded the
claimed, in principle, not be verified this law is not on
complainant on 4) in a procedure BvR 256/08, where
the scale of the fundamental rights of the Basic Law
such claims infringement of Article 12 paragraph 1
as long as the European Communities (or now the
GG.
European Union), in particular the European Court of
Justice, the effective protection of fundamental rights
guarantee in general, without that fundamental law in

21
I. II

185 188
The constitutional give no cause for a preliminary The challenged regulations do not intervene in Article
ruling before the European Court of Justice under 10 paragraph 1 GG.
Article 267 TFEU. Would have been an appropriate
submission by the Federal Constitutional Court (see 189
BVerfGE 37, 271 <282>) are, in particular, if the 1st Article 10 paragraph 1 GG guarantees the
interpretation or the validity of Community or Union secrecy of telecommunications, which is the
law are involved, the priority claim before national law intangible transfer of information to individual
and its implementation by the Federal principle, not recipients with the help of telecommunications (see
by the scale of the fundamental rights of the Basic BVerfGE 106, 28 <35 f.>, 120, 274 <306 f.>) in front
Law is examined. However, such a template can only of a note by The public authorities shall protect (see
be acceptable and necessary when it comes to the BVerfGE 100, 313 <358>, 106, 28 <37>). This
interpretation or validity of EU law. This is not the protection covers not only the content of
case. communication. but is within a protected the
confidentiality of the circumstances of the
186 communication, including, in particular, whether they
The effectiveness of the Directive 2006/24/EC and a took place, when and how often between the persons
therefrom may result therefrom primacy of EU law or telecommunications equipment
over German fundamental rights are not relevant. The telecommunications market or being tempted (see
content of the Directive leaves the Federal Republic BVerfGE 67, 157 <172>, 85, 386 < 396>, 100, 313
of Germany for the design of the required retention of <358>, 107, 299 <312 f.>, 115, 166 <183>, 120, 274
telecommunications traffic in her a broad margin of <307>).
discretion. The Directive requires Member States but
to the operators of publicly available electronic 190
communications networks and communication The protection provided by Article 10 paragraph 1 GG
services for storage of virtually all is not only the first access, content with the public
telecommunications traffic data for a period of at least power of telecommunications operations and takes
six months imposing (Articles 1, 3, 5 and 6 of note. Its protective effect also extends to the
Directive 2006/24/EC). Their rules are, but essentially information and data processing, which follow on from
limited themselves to recording obligations and not the note of protected communication processes, and
allow access to the data or their use by the authorities the use that is made of the acquired knowledge (see
of the Member States. In particular, they harmonize, BVerfGE 100, 313 <359>). A fundamental operation
neither the question of access to information by the is any inspection, recording and recovery of
relevant national law enforcement authorities, the communications data and any analysis of its content
question of the use and exchange of information or other use by the public authority (see BVerfGE 85,
between these authorities (see ECJ, Judgement of 10 386 <398>, 100, 313 <366>, 110, 33 <52 f.>) . In the
February 2009 - Case C-301/06 - marg. 83). Based collection of telecommunications data, their storage,
on the minimum requirements of the Directive their comparison with other data, its analysis, its
(Articles 7 and 13 of Directive 2006/24/EC), it also selective for further use or transmission to third
lies with the Member States to take the necessary parties that are each in their own intervention in the
measures to ensure data security, transparency and telecommunications secrecy (see BVerfGE 100, 313
redress. <366 f.>). Consequently, lies in the arrangement to
communications companies, telecommunications
187 data to collect, store and transfer them to government
This content may Directive without violating the bodies, each intervention in Article 10 paragraph 1
fundamental rights of the Basic Law to be GG (see BVerfGE 107, 299 <313>).
implemented. The Constitution prohibits such a store
not in all circumstances. Rather, they can also 191
become independent of an eventual supremacy of That comes under Article 2 para 1 in conjunction with
Community law according to the requirements of Article 1 paragraph 1 GG following right to
fundamental rights of the Basic Law arranged informational self-determination in addition to Article
permitted (see below IV). An examination of the 10 of the Basic Law does not apply. In terms of the
challenged provisions on the total scale of the Telecommunications Basic Law Article 10 contains a
German fundamental rights is not to be so in conflict specific guarantee, which replaced the general rule
with the Directive 2006/24/EC, making it to the validity and result from the specific requirements for the data
and priority is not important. obtained by interfering with the secrecy of
telecommunications. In that regard, however, can the
conditions under which the Federal Constitutional

22
Court has developed under Article 2 para 1 in interference with Article 10 paragraph 1 GG (see
conjunction with Article 1 paragraph 1 GG, BVerfGE 107, 299 <313 f.>).
transferred to a large extent on the more specific
guarantee of Article 10 of the Basic Law (see 194
BVerfGE 100, 313 <358 f.>). b) violations of basic rights in Article 10 paragraph 1
GG are also in the arrangements for data
192 transmission in a sentence a sentence of § 113b Act.
2nd a) in § 113a paragraph 1 TKG imposed on Although this provision opens in itself does not use
service providers of telecommunications traffic data the stored data according to § 113a TKG, but refers
retention interferes with telecommunications secrecy. to another law to be created specifically request
This is the case for the retention obligations in standards. However, it is the fundamental provision
respect to telecommunications services pursuant to § may be used for what purposes the data. You respect
113a para 2-5 Telecommunications Act and in the free telecommunications companies from its
connection herewith pursuant to § 113a para 6 and 7 addition in applicable confidentiality. That the data
of the Act. The extent to give the records to ascertain ultimately used only in the final graded mesh of rules
whether, when, where and how often taken between at various levels of their standard set of rules will not
which telecommunications connections, or to be alter the fact that the definition of the uses and
incorporated has been tried. This particularly applies permission to use part of the data transmission
to the storage of data services to the electronic mail scheme and the extent interference nature. Again, it
pursuant to § 113a para 3 TKG whose confidentiality is irrelevant that § 113b TKG transfers the data
is also protected by Article 10 paragraph 1 GG (see relates to the part of private service providers. The
BVerfGE 113, 348 <383>, 120, 274 < 307>). That proposed transfer is based on a legal regime and
can intercept e-mails technically easy changes to thus directly to an act of grundrechtsgebundenen
their confidential nature and its need to protect under Article 1 paragraph 3 GG public authority is a
anything. An interference with Article 10 paragraph 1 sovereign arrangement in advance case and made to
GG reasons for the storage of data relating to the authorities. It is thus legally regarded as an
Internet pursuant to § 113a para 4 the Act. While the interference of the state.
Internet allows not only the admission of individual
communications, come under the protection of 195
telecommunications secrecy, but also to participate in c) any interference with Article 10 paragraph 1 GG
mass communication. Since a distinction between also justified a sentence of § 113b sentence 2 in
individual and mass without the protection of the conjunction with § 113 paragraph 1 TKG. It allows
fundamental contrary connection to the content of authorities by service information on inventory and
each transmitted information is not possible is to see customer data in accordance with § § 95, 111
already in the storage of the Internet as such data Telecommunications Act require that service
relating to an intervention, even if data on the providers can only use the after § 113a para 4 TKG
accessed web pages not included (see Gusy, in: v. identify stored data. Apart from the question of
Mangoldt / Klein / Starck, GG, Volume 1, 5th edition whether and to what extent general information in
2005, Article 10 para. 44; Hermes, in: Dreier, GG, accordance with the Act § 113 is an interference with
Volume 1, 2nd edition 2004, Article 10 para. 39). Article 10 paragraph 1 GG or whether so far only in
principle the right to informational self-determination
193 under Article 2 para 1 in conjunction with Article 1,
The quality of the intervention TKG § 113a is not para . 1 GG is relevant is, at least for information
called into question that the storage required by this pursuant to § 113b sentence 1 sentence 2, § 113
rule is not executed by the state itself, but by private para 1 affirmative TKG an interference with
service providers. For these are taken only as telecommunications secrecy under Article 10
assistants to do the job by state authorities to paragraph 1 GG. For it is here the use of stored
complete. TKG § 113a, the private according to § 113a TKG and regulated so that
telecommunications companies to store data required through their impact on Article 10 paragraph 1 GG
solely for the performance of work by state agencies acquired data. Each subsequent use of data that
for purposes of law enforcement, security and were once collected in the form of an interference
compliance intelligence tasks according to § 113b with Article 10 paragraph 1 GG is always to live up to
Act. It assigns the state associated with the storage of this fundamental right (see BVerfGE 100, 313 <359>,
fundamental effect on directly, without the 110, 33 <68 f.>; 113, 348 <365>). Again, it can not
speicherungspflichtigen company so far remains a get out that this is not legally required use by the
scope for action, and the data to be registered so that public sector itself, but - in fulfillment of the request -
legitimate requests for information public authorities through private providers.
can be met without delay according to § 113a para 9
Act. Under these conditions, the storage of the data is 196
legally attributable to the legislature as a direct d) any interference with Article 10 paragraph 1 GG
eventually founded § 100g Code of Criminal

23
Procedure. It enables law enforcement agencies, the detected as part of the Data Protection Act hereby to
stored according to § 113a of the be connected by virtue of material connection.
Telecommunications Act data can be transmitted to Absence of an express conferral is the right of privacy
the storage and obligated to use. § 100g para 1 in principle the responsibility of the countries. A
sentence 1 Code of Criminal Procedure, and even federal responsibility for the scheme exists by virtue
makes the use of this power grab as acts of public of material connection, however, insofar as the
violence, therefore, also in the scope of Article 10 federal government on legislation assigned to him a
paragraph 1 GG. matter regulate verständigerweise can not, without
the data protection provisions be adjusted too (cf.
BVerfGE 3, 407 <421>, 98, 265 <299> , 106, 62
III. <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
197 case. These are related to the provisions of the
Meet formally with the challenged provisions are no Telecommunications Act on data protection and
objections. They satisfy the statutory reservation of normalized in reference to the regulation of the
Article 10 paragraph 2 sentence 1 GG, and are technical conditions of the transmission of information
covered by federal jurisdiction. to be observed in each of the requirements for
dealing with the provision of telecommunications
198 services produced or processed data. They tie in
1st Restrictions on telecommunications secrecy may directly to those situations that fall within the scope of
be arranged only on the basis of a law under Article legislation matter of telecommunications. Because of
10 paragraph 2 sentence 1 GG. No doubt be subject this close link between the technical transfer process
to the extent initially TKG § 113b and § 100g Code of and the resulting data can provide the necessary data
Criminal Procedure, which - will, where appropriate, protection scheme being used only in a uniform made
in conjunction with other regulations - a legal basis for by the federal legislature has the power to regulate
the adoption-case arrangements, under which the the transmission process. To do otherwise risks an
access to the data. Constitutionally unobjectionable inconsistency causing disintegration of the technical
so far is also § 113a TKG, which for the storage of and data protection regulations for data processing.
the data does not refer to instructions on specific Accordingly, the Telecommunications Act, in addition
cases, but this immediately imposes itself. Article 10 to the provisions of § § 113a and 113b
paragraph 2 sentence 1 GG restrictions on Telecommunications Act and the secrecy of
telecommunications secrecy is also directly by law telecommunications in § § 88 ff TKG also in § § 91-
does not prevent (see BVerfGE 85, 386 <396 et seq). 107 TKG extensive area-specific data protection
regulations, which kompetenzielle legality before - not
199 apparently been - was seriously in doubt.
2nd The federal government does not lack a
legislative powers. , § § 113a, 113b TKG find their 202
competence basis in Article 73 paragraph 1 GG No 7, The range for the federal government can take on this
§ 100g Code of Criminal Procedure are found in responsibility basis of the provisions that are
Article 74 paragraph 1 No. 1, Article 72 para GG first necessary to control this basic right of data usage. In
particular it may include clauses that are necessary to
200 ensure that the Act provided for in § 113 a data
Article 73 para 1 No 7 GG entitled immediately but storage and transmission of data to law enforcement
only to regulate the technical side of creating a and security agencies and intelligence services and
telecommunications infrastructure and information their use for the communication of information under
transmission by means of telecommunications § 113 TKG the fundamental rights requirements of
systems. Standard covers are not accepted by the Article 10 para . meet a GG. Since require
rules, which are addressed to the transmitted content intervention in Article 10 paragraph 1 GG, that its
or the nature of the use of telecommunications (see purpose is intended area specific, precise and
BVerfGE 113, 348 <368>, 114, 371, <385>) and normenklar (cf. BVerfGE 100, 313 <359 f.>; 110, 33
about one interception for the purpose of obtaining <53>; 115, 320 <365>; 118 , 168 <187 f.>), this
information providing for duties of law enforcement or includes the competence to sector-specific, precise
security. Such regulations are in relation to the and normenklaren scheme of the purpose of storage.
legislative respectively attributable to the legal field, The legislative powers of the Federal sufficient in this
for the purposes of the monitoring is done (see regard but only as far as is necessary, according to
BVerfGE 113, 348 <368>). data protection considerations and the items related
to constitutional requirements. The authorizations to
201 data retrieval itself can not support the federal
, § § 113a and 113b of the Act are the power to government, therefore, on Article 73 para 1 No 7 GG.
regulate the telecommunications law, however, also

24
He needs for one's own competence permit or the unreasonable design of such data collection and, in
decision must be left to inform the countries. this particular against boundless stated end. Is strictly
prohibited only the storage of personal data to be
203 retained, vague and not definable purposes (see
§ § 113a, 113b TKG take the bill in principle. They BVerfGE 65, 1 <46>, 100, 313 <360>). A
limit themselves to creating obligations by storing and precautionary anlasslose data storage is only
transmission schemes, the conditions for a permitted in exceptional cases. It is subject to terms
government access to data. The filling of contrast of their justification, and in its design, particularly in
remains left to its own rules for data retrieval. Without relation to the proposed uses, particularly strict
prejudice to the substantive question whether the requirements.
federal government the uses this has sufficiently
limited in scope (see below CV VI 5 and 3 b), are 207
against this vocational colleges to raise no objections. 2nd A precautionary anlasslose retention of
telecommunications traffic data for later transmission
to the event-responsible for law enforcement or
IV 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
204 there were usually not given the increasing
Material, are unconstitutional interference with importance of telecommunications to the preparation
telecommunications secrecy if they are to serve and commission of crimes in many cases of success.
legitimate public purposes and, moreover, satisfy the It is irrelevant whether the regulations created by the
principle of proportionality (see BVerfGE 100, 313 legislator will be able to reconstruct fully all
<359>), that is, to achieve the purposes of telecommunications links. Although ensure such data
appropriate, necessary and reasonable (see BVerfGE may not mean that all communication lines reliably
109, 279 <335 et seq, 115, 320 <345>, 118, 168 specific port workers may be assigned, and some
<193>, 120, 274 <318 f.>; established case-law). criminals to store through the use of hotspots, internet
cafes, international Internet telephony services and
205 undermined under false names registered prepaid
A six-month retention of telecommunications traffic mobile phones can, this can be the suitability of a will
anlasslose qualified for uses in connection with law not oppose such legislation. This does not require
enforcement, security and the role of intelligence, as that the legislative objective is actually achieved in
is the § § 113a, 113b arranged TKG, then with Article each individual case, but merely requires that the
10 of the Basic Law is not absolutely incompatible. purpose of achieving is encouraged (see BVerfGE
The legislature may pursue such a scheme legitimate 63, 88 <115>, 67, 157 <175>, 96, 10 <23>, 103, 293
purposes for the attainment of such storage in the <307>).
sense of the proportionality principle is appropriate
and necessary. One such store is lacking in terms of 208
proportionality in the strict sense, not in advance of 3rd The legislature may judge a six-month retention
any justification capability. In one embodiment, the of telecommunications traffic as necessary. Less
weight of the specific inherent in this procedure takes restrictive means to enable as far-reaching
sufficient account unterfällt not already a anlasslose awareness campaigns, are not apparent. A similarly
storage of telecommunications traffic, as such, the effective educational opportunity lies not in particular
strict prohibition of storage of data on stocks in the in the so-called Quick-freezing procedure is ordered
jurisprudence of the Constitutional Court (see when the place of the anlasslos-general retention of
BVerfGE 65, 1 <46 f.>, 115, 320 <350>, 118, 168 telecommunications data, a storage only in individual
<187>). cases and only on the date on which this example
due to a certain suspicion of concrete occasion
206 exists. Such a process can capture the data from the
1st The more effective law enforcement, security and period before the order of their storage, only if they
the fulfillment of the tasks of the intelligence services are still present, is not as effective as continuous
are legitimate purposes that an intervention can in storage, which ensures the presence of a complete
principle justify the secrecy of telecommunications data set for the last six months.
(see BVerfGE 100, 313 <373, 383 f.>, 107, 299
<316>; 109 , 279 <336>, 115, 320 <345>). It is an 209
illegitimate, the principle of freedom of Article 10 4th A six-month retention of telecommunications
paragraph 1 GG self-transcending objective is not traffic in one as in § 113a TKG extent provided in
already in it, should the communication traffic to be advance is not disproportionate in the narrow sense.
secured anlasslos precaution. Article 10 paragraph 1
GG does not prohibit any precautionary collection and 210
storage of data at all, but protect against an

25
a) However, it is in such a store is a very serious contacted by a particular person to be, to be exposed
engagement with a range as it's legal does not know to a large extent to be under investigation and
so far: It covers the whole six months, virtually all statement printing. The abuses associated with such
telecommunications traffic data of all citizens without data, exacerbate the stressful effects. This is
any connection to one attributable reprehensible especially true because of the wide variety of private
conduct, a - even abstract - dangerous or otherwise a providers, where the telecommunications data to be
qualifying situation. The storage refers to everyday stored. have already given the number of
action, in everyday life and fundamental for Speicherungsverpflichteten is the number of those
participation in social life in the modern world is no big, the have access to such data and have. Since
longer dispensable. Basically, any form of the storage requirement mitbetrifft smaller service
telecommunications is in principle excluded from the providers, the backup comes from abuse regardless
storage. While the system can result in occasional of all possible and necessary efforts of legislators in
gaps, which prevent each and every view of their performance to structural limitations.
telecommunications connection can be reconstructed This is reinforced by the fact that the requirements to
individualizing, how might when using hotspots, assume the data management and transmission of
confusing private networks or service providers in data to the authorities a high degree of technical
non-European countries. A regular alternative to the mastery and sophisticated software, which combines
citizen, this opens up is not. The legislature tried but, an inherent risk of vulnerabilities and the risk of
in principle, capture all the communication lines so manipulation by interested third parties. Special
that users can be identified widely as possible. attention given to storage of telecommunications data
remains the fact that they themselves and the
211 proposed use of the stored data by those concerned
The strength of the data is extensive. Depending on not observed directly, but also capture compounds
the use of telecommunications services from the which are included under confidentiality expectations.
persons concerned have already from the data itself - This anlasslose the retention of communication traffic
to win and even if they serve as starting points for is likely to evoke a feeling of vague threatening
further investigation - a deep insight into the social Beobachtetseins that can affect the impartial exercise
environment and the individual activities of every of fundamental rights in many areas.
citizen. It is true that a telecommunications traffic
data, as provided in § 113a Telecommunications Act, 213
only the connection data (time, duration, and involved b) Despite the extraordinary spread and the
connections - detained for mobile telephony - the consequent interference with their weight is the
site), but also the content of communication. From legislator to introduce a six-month storage
these data do, however, if a comprehensive and requirement, as provided in § 113a TKG, absolutely
automated analysis to draw in the privacy of the not constitutionally prohibited. However, it
contents spilling conclusions. Recipients (whose corresponds to the case law of the Constitutional
membership of certain occupational groups, Court that the state has a collection of personal data
institutions or interest groups or the services they to be retained vague or not yet determinable
provide), data, time and location of telephone purposes is strictly prohibited constitutionally (see
conversations allow when they are observed over a BVerfGE 65, 1 <46>, 100, 313 <360>, 115, 320
longer period, in combination, detailed statements on <350>, 118, 168 <187>). To advance such a
social or political affiliations, and personal prohibited form of data collection is a precaution
preferences , tendencies and weaknesses of those anlasslosen retention of telecommunications traffic
whose connection to be evaluated. There is no data is not in every case. If they are for specific
confidentiality protection being required. Depending purposes, such storage can meet in an integrated
on the use of telecommunications and the future in surgery adequate legal arrangements (see below V)
increasing density, such a storage enable the but also the requirements of proportionality in the
creation of meaningful personal and motion profiles strict sense.
virtually every citizen. In terms of groups and
associations, the data also may allow the detection of 214
internal control structures and decision processes. aa) A crucial factor is this, first, that the proposed
retention of telecommunications traffic is carried out
212 not directly by the state but by a commitment from the
A storage that are justified in principle, allows such private service provider. The data will be merged so
uses and to allow in certain cases, a serious that the storage has not itself, but remain divided on
interference. Of weight here is also that, many individual companies and are not directly
independently of much of whatever controlled applicable to the state as a whole are available. This
embodiment of the data use increases the risk of has in particular, which is to ensure that the
citizens that are the subject of further investigation, arrangements and technical arrangements, no direct
without having even given rise to it. It ranges from, for access to the data. The retrieval of data by state
example, at a bad time in a particular cell or had been agencies shall be made only in a second step, and

26
now as circumstances require closer to legally particularly the telecommunications links are essential
established criteria. The design of the can for retrieval for effective law enforcement and security is of
and further use of the stored data while empowering particular importance.
provisions ensure that the storage is not too vague or
not yet identifiable purposes. It can and must be 217
guaranteed in the arrangement of such a retention In addition, there are terms of telecommunications
requirement that an actual acknowledgment and use data for lack of public visibility and no social memory,
of the data limited in normenklarer form in a way is which is just one area allowed to reconstruct past
that the weight of the extensive data collection into events on the basis of random memory:
account, and the retrieval and the actual use of data telecommunications data is either removed, and then
to the strictly necessary part of data collection is completely lost or saved and are therefore fully
limited. The separation of storage and retrieval available. Therefore, should the legislature to decide
promotes structurally at the same time - to further how far such data to delete or save are to make a
refinement by legal guarantee of amounts due - balance of interests and consider the interests of
transparency and control of data usage. state to task performance. Here it can also include in
its considerations that the distribution of certain
215 contractual arrangements of the telecommunications
bb) A six-month retention of telecommunications service providers (such as the increase in flat rates)
traffic data points not already out of themselves, the for application of a strict requirement for deletion of
principle of Article 10 paragraph 1 GG as such, it telecommunications traffic, which are not required for
violates neither the core human dignity (Article 1 contract implementation, reduces the availability of
paragraph 1 GG) nor its essential content (Art. 19, such data. There too, can support the precautionary
para . 2 GG). It remains, despite its extraordinary saving of telecommunications traffic on factors in the
breadth still limited. Thus the content of characteristics of modern telecommunications have a
telecommunications is omitted from the traffic on the specific reason.
limited storage. It also remains the storage time
limited in time. Although a storage period of six 218
months, given the scale and significance of the data Conversely, should the retention of
stored very long and is located at the upper limit of telecommunications traffic will not be understood as a
what is under rechtfertigungsfähig proportionality step towards a legislation that was aimed at a
considerations. After its expiry, the citizens could rely possible comprehensive precautionary storage of all
on their data - if they were not retrieved from for the prosecution or threat prevention useful data.
exceptionally weighty occasion - will be deleted and Such legislation would be inconsistent regardless of
no one is reconstructed. the format of the use of schemes, from the start with
the Constitution. The constitutional safety precaution
216 anlasslosen a storage of the communication traffic
cc) A retention of telecommunications traffic data for requires, rather, that this remains an exception. It
six months presents itself not as a measure that may not even lead in conjunction with other existing
would have to censuses of communication or files reconstructability virtually all activities of citizens.
activities of the citizens generally created. Rather, it Relevant for the justification of such storage capacity
links in a permanent way is still limited to the is therefore in particular that they are not done
particular importance of telecommunications in the directly by government bodies, not covering the
modern world and to respond to the specific risk content of communication and that the store is called
potential associated with this. The new by its customers by commercial Internet service
telecommunication means to overcome time and provider prohibited. The introduction of
space in a manner incomparable with other forms of telecommunications traffic data can therefore not
communication and in principle to the exclusion of serve as a model for the creation of further precaution
public perception. They facilitate communication, and occasion wireless data collection, but forces the
with it the covert action of offenders and it also legislature to consider new storage obligations or
scattered groups of a few allow people to come privileges in view of the totality of the various existing
together and work together effectively. By virtually data collections to greater restraint. may be that the
resistance-free communication is a pooling of freedom of exercise of the citizens not covered
knowledge, action-taking and criminal energy is completely and registered on the constitutional
possible, preferring the security and law enforcement identity of the Federal Republic of Germany (see, part
on new tasks. Some crimes take place immediately of the Basic Law Identity reserved Constitutional
with the help of new technology. Forming part of a Court, Judgement of the Second Senate of 30 June
conglomerate of communicating technically exist only 2009-2 BvE 2 / 08, etc. -, juris, para. 240), for the
computers and computer networks such activities well observance of which the Federal Republic must be
beyond the observation. At the same time they can used in European and international contexts. By a
establish - through attacks on the telecommunications precautionary saving of telecommunications traffic,
of third parties - also new dangers. A reconstruction the scope for further data collection anlasslose also

27
about the way the European Union significantly specification of the four-eye principle for accessing
reduced. the data with advanced methods for authentication for
access to the keys, the audit logging of access to
219 data and their deletion and the use of automated
dd) In a six-month retention of telecommunications error correction method and plausibility. In addition to
traffic in which the legislature is in § 113a para 1-8 such technology-oriented instruments and the
TKG extent provided under the present creation of information in data breaches, the
circumstances is not disproportionate from the outset. introduction of strict liability or a strengthening of
For their safety, however, is constitutional, provided compensation claims has been called for moral
that the design of storage and use of the specific damages, in order to create incentives for the
weight of such data storage due consideration. implementation of an effective data protection.

224
V. The Constitution does not purport to detail, which are
offered Sicherheitsmaßgaben in detail. The result
must, however, a standard to ensure the guaranteed
220 under specific regard to the characteristics of jobs
The design of a precautionary telecommunications created by a precautionary telecommunications data
traffic data, as provided in § 113a TKG subject to storage data sets a particularly high level of security.
specific constitutional requirements, particularly with This includes ensuring that this standard - for
regard to data security, the extent of the use of data, example, using figures based on ordinary law as the
transparency and legal protection. Only when state of the art (see Heibey, in: Rossnagel, manual
sufficiently advanced in this regard and normenklare data protection law, 2003, p. 575, para. 19, p. 598,
arrangements are made, the interest in such a para. 145; Tinnefeld / Ehrmann / Gerling, Introduction
storage operation is relatively proper. to the Data Protection Law, 4th edition 2005, p. 628) -
on the development of the technical discussion
221 oriented and continuously absorbs new knowledge
1st A recording of telecommunications traffic in the and insights. Accordingly, to provide that the
scope of § 113a of the Act requires statutory speicherpflichtigen business to adapt - for example
guarantee of a high standard of data security. on the basis of periodic refreshing security concepts -
their actions therein verifiable. The potential danger
222 arising from the databases in question are allowed,
Given the scale and potential significance of the not to impose the security requirements described in
created with such databases is storing the data for a free assessment of general economic factors. If the
the proportionality of the challenged provisions of legislature a comprehensive retention of
great importance. This is especially true because the telecommunications traffic invariably required, it is
data are stored in private service providers who act one of the necessary requirements that covered
under the conditions of efficiency and cost pressures entities can not only fulfill their duty to store, but also
and thus have limited incentives to ensure data the corresponding requirements for data security.
security. They deal in principle and private-are not Building on the expert opinions, it is suggested that,
bound by specific duties. At the same time the risk of in principle, in the current state of discussion, a
illegal access to data is large because, in view of their separate storage of the data, a sophisticated
multiple significance can be attractive for a variety of encryption, a secure access regime, using some of
stakeholders. Commandments is thus a particularly the four-eye principle and an audit logging must be
high standard of security that goes beyond the met to ensure safety the data to provide
generally constitutionally required measure for the constitutionally sufficient.
data retention of telecommunications. Such
requirements for data security be paid to both the 225
storage of data and for providing it, as it calls for Necessary legal arrangements that such a particularly
effective safeguards to ensure the erasure of the high standard of security in that person at least
data. pretend the merits normenklar and binding. It is up to
the legislature, the technical specification of the
223 predetermined scale trust regulatory authorities. The
In statements made at the hearing and in written legislature has, however, while ensuring that the
comments submitted to this procedure from a wide decision not on the type and level of protection to be
range of expert page of instruments to increase the taken ultimately uncontrolled in the hands of the
data has been presented. Called as a separate respective telecommunications provider. The
storage under § 113a of the Act were to be stored on wrongful requirements are differentiated by either
physically separate and decoupled from the Internet pretending technical regulations - may standard
computers, connected by asymmetrical cryptographic graded on different levels - or in general-a general
encryption under separate custody of the keys, the way and then flesh out in a transparent manner by

28
binding individual decisions of regulators to the comes here to an area of discretion. He can either
individual companies. provided constitutionally draw on existing catalog or create a separate catalog,
continue to be transparent to the public scrutiny with about the offenses for which the communication
the involvement of the independent data (see traffic are particularly important to capture. The
BVerfGE 65, 1 <46>) and a balanced system of qualification of a crime as serious but will be in the
sanctions, which also attaches to breaches of data criminal law provisions - in particular about whose
security a reasonable weight. penalty - finding a objectified expression (see
BVerfGE 109, 279 <343 ff, especially 347 f.>). A
226 general clause or only the reference to major criminal
2nd A retention of telecommunications traffic, as offenses ranging from no other hand.
provided in § 113a TKG is to continue to advance
legal regulations on the use of this data. The relative 229
configuration of the usage rules not only decide on About the abstract definition of a relevant crime
the constitutionality of an overriding provisions catalog addition, the legislature must ensure that
establishing itself, but acts on the constitutionality of recourse to the precautionary stored
the already stored back as such. According to the telecommunications traffic is allowed only if in case
jurisprudence of the Constitutional Court, the the wanted criminal offense seriousness (see
conditions for data use and their scope in the relevant BVerfGE 121, 1 <26>; to serious criminal offenses
legal principles are more closely restricted, the significance see BVerfGE 107, 299 <322>;
heavier the weight of the storage lying intervention. particularly serious crime within the meaning of Article
Reason, purpose and extent of the surgery and the 13 paragraph 3 GG see BVerfGE 109, 279 <346>)
corresponding interference levels are regulated by and the use of the data is proportionate.
the legislature sector-specific, precise and
normenklar (see BVerfGE 100, 313 <359 f.>, 110, 33 230
<53>, 113, 29 <51> , 113, 348 <375>, 115, 166 b) The security is to use the data in question to limit
<191>, 115, 320 <365>, 118, 168 <186 f.>). equally effective. to open the data access by
reference to catalogs of certain crimes, the prevention
227 of which is to serve the use of data (see BVerfGE
Use of systematic saving by anlasslos virtually all 122, 120 <142>), is not an appropriate control
traffic Telecommunications stocks gained data technology. She takes the requirements for the
accordingly be subject especially stringent degree of legal protection risks its clarity and leads to
requirements. In particular, this is not to the same uncertainties in the event where even the offenses
extent constitutionally permissible, such as the use of themselves mere preparatory acts and threats of
telecommunications traffic, the service provider, legal protection under punishment. Instead, offer to
depending on the particular operational and take the law directly relating to the legal rights to
contractual circumstances - from the customer may justify their use of these data is to protect, and the
be influenced in part - save to § 96 TKG. Given the intensity of this threat of legal protection that must be
inevitability of, completeness, and thus increased achieved as a threshold for intervention of this. Such
relevance of the precautionary systematically a rule reflects the character of the security as of legal
collected over six months of their traffic demand has protection and guarantees a direct connection to the
a much greater weight. As an analysis of these data ultimate goal, is to justify the encroachment on basic
deep into the private life of penetrating conclusions rights.
and possibly detailed personality makes and motion
profiles, can so far not be assumed without further 231
assume that the use of this data generally less The balance between the weight leads to in the
important than a content-based telecommunications storage and use of data underlying the intervention
(to query the old law, see . BVerfGE 107, 299 <322>). and the importance of effective security to ensure that
Rather, the use of such data can only be regarded as a release of precaution saved telecommunications
proportionate if it is particularly high-level public traffic only to counter threats to life or liberty of a
affairs. The use of the data is therefore paramount for person for the stock or the security of the Federation
the Protection of Legal important tasks into or a country or may be permitted to defend against a
consideration, that is imposed for crimes that threaten common threat (see BVerfGE 122, 120 <141 et seq).
the outstanding important legal rights or to prevent The legal basis for authority in this regard must be at
threats to such legal rights. least actual evidence of a concrete threat to the
protected legal interests require. This requirement
228 means that sufficient general assumptions or
a) For the prosecution, it follows that a retrieval of the empirical propositions not to justify access to the
data at least the reasonable suspicion presupposes data. Rather, certain facts must be established that
certain facts by a serious crime. What crimes should carry the prognosis of a concrete danger. It requires
be covered accordingly, has the legislature finally that regard a situation in which, in case there is a
established with the obligation to store data. He reasonable probability that in the foreseeable future

29
without government intervention caused a damage to This reduces the weight of the intervention so far,
the protected goods of the standard by certain when it connects to the individual citizens about the
persons. The relevant observations of the Senate danger of being observed is not beyond the danger of
regarding the requirements for online searches apply car related thereto further action. At the same time is
here accordingly (see BVerfGE 120, 274 <328 f.>). reduced thereby, but also the weight to justify such
The real danger is determined by three criteria: the intervention, but by mere information the government
individual case, the proximity of the transformation of can not legally protected injury to be prevented. This
a hazard in an injury, and the reference to individual is possible only by action taken by the competent
persons as a polluter. The query of data stored as a security authorities, the constitutional limitations on
precaution, however, can already be justified if they the use of data should not be undermined by further
are not yet possible to determine with reasonable use of powers in the run. A particular burden to the
probability that the risk occurs even in the near future, citizens impact of such interventions is, moreover,
if certain facts point to an individual in imminent that not only the respective intervention in the secrecy
danger for a supremely important right. The facts of telecommunications, as such, covered generally
have to admit to a conclusion as to the at least one of happens, but practically carried the entire activities of
its kind for concrete and time-foreseeable event, on the intelligence secret. Powers of such services
the other, that certain persons will be involved, at nationwide as a precaution for use of stored
least as much about their identity is known that the communication traffic to promote a feeling of
measure is targeted against them and to them can be uncontrollable being observed in a particular manner
concentrated. In contrast to the weight of the and develop sustainable intimidation effects on the
fundamental intervention is not sufficiently taken into freedom of perception.
account when the actual interference event is still
largely moved in the advance of a not foreseeable in 234
detail specific threat to the protected goods of the The Senate does not deny that this would eliminate
standard. the use of the stored communication traffic as a
precaution on the part of the intelligence services in
232 many cases. However, this is in the nature of their
c) The constitutional requirements for the use of the duties as the run information and does not constitute
data security apply to all appropriations intervention a constitutionally acceptable reason for the
with preventive purpose. They are thus also for the drawbacks of the proportionality principle resulting
use of information by the intelligence services. Since conditions for engagement of the present species
the interference is through the intervention in all these (see BVerfGE 120, 274 <331>).
cases for the parties concerned the same, there is no
reason to regard these requirements 235
behördenbezogenen differentiations, such as be d) The limitation of the data used for particular
between police and other preventative work with purposes must be ensured for the use of data for
authorities responsible authorities such as the retrieval and transmission to the authorities and
Constitution. That police and Constitution authorities retrieving flanked procedurally. It is to ensure by law
various functions and powers have and make in the that the data will be evaluated immediately after
follow-up with different depth of intervention can be, delivery and, if they are irrelevant for purposes of the
for the weighting of the use of precautionary area-and survey, are deleted (see BVerfGE 100, 313 <387 f.>).
long-term stored telecommunications traffic generally Moreover, it is necessary to provide that the data will
irrelevant (see BVerfGE 120, 274 <329 f.>) . While be destroyed after it for the specified purposes are no
appropriations can discriminate between the various longer necessary, and that purpose a log is produced
authorities with preventive tasks before the (see BVerfGE 100, 313 <362>, 113, 29 <58>).
Constitution endure (see BVerfGE 100, 313 <383>,
120, 274 <330>). However, the legislature is also in 236
the regulation of various powers of security agencies, The telecommunications traffic lose their protection
whose task is to advance education, subject to the mediated by Article 10 GG is not the fact that already
constitutional requirements stemming from the has a government agency becomes aware of them.
proportionality principle (see BVerfGE 120, 274 <330
f.>). These result in this case to provide that both in 240
terms of legally protected rights as well as to the a) The conditions of the constitutionally acceptable
threshold of intervention to be considered this special use of data obtained through such storage conditions
demands on the data are used. fall within the transparency. As far as possible must
be done using the data open. Otherwise, it always
233 requires at least a subsequent notification of
There is no reason why these requirements should individuals. Failing this exceptionally well, requires a
not apply for the completion of the intelligence. While judicial decision concerning non.
limiting the role of intelligence in principle to the
collection of information for informing the government. 241

30
aa) A precautionary anlasslose retention of all which a data query - whether as suspects, or third
telecommunications traffic data for six months is one parties Polizeipflichtige - directly related, has put at
reason such a serious intervention, because it can least in retrospect, in principle, are having.
cause a feeling of perpetual Überwachtwerdens they Exceptions may provide balance in the legislature
allowed in an unpredictable way deep insights into with constitutionally protected legal interests of third
the private lives without the use of the data for the parties. However, they are strictly necessary to the
citizens is directly felt or seen. Individuals do not limit (see BVerfGE 109, 279 <364>). Possible
know what know what state authority over him, but I exceptions to the notification obligations in connection
know that the authorities many, even highly individual with law enforcement, for example, if the knowledge
can know about him. would result in breaching the secrecy of
telecommunications to the fact that this fails its
242 purpose if the notice can not be done without risk to
The legislature needs to diffuse threat that can life and limb of a person or if their overriding interests
receive the data thereby, absorb through effective an affected person would hold, perhaps because of
transparency rules. Rules for informing the persons the notification of a measure which has had no further
concerned or of use of data collection are generally of consequences, the fundamental intervention would
the fundamental instruments of data protection basic have deepened (see BVerfGE 100, 313 <361>, 109,
rights (see BVerfGE 100, 313 <361>, 109, 279 <363 279 <364 et seq). If there are compelling reasons
f.>, 118, 168 <207 f.>; 120, 351 <361 f.>). The use of which also exclude a subsequent notification, this is
the extensive and varied collections of meaningful to confirm a judicial and examine at regular intervals
data precaution anlasslosen telecommunications (see BVerfGE 109, 279 <367 f.>). Correspondingly, it
traffic data storage requirements are placed high so requires a refinement of the notification obligations
far. You have to take the task of reducing to one from also with regard to the use of data for security
the ignorance of the actual relevance of the data purposes or functions of the intelligence.
resulting threatening, unsettling speculation counter
and to establish the subjects the opportunity to put 245
such measures in the public debate. On the other not constitutionally necessary in contrast, are similar
hand, such requirements also from the imperative of to strict notification requirements in relation to people
effective judicial protection under Article 10 paragraph whose communication traffic were also detected only
1 GG in conjunction with Article 19 paragraph 4 GG by chance and not even the focus of regulatory action
are derived. Without the attention of those affected were. Such party may exist in the analysis of
neither illegality of the use of administrative data nor telecommunications traffic on a large scale, without
any rights for cancellation, rectification or satisfaction the short-term disclosure of their data leave traces or
claim (see BVerfGE 100, 313 <361>, 109, 279 consequences for the person concerned must have.
<363>, 118, 168 <207 f.>; 120 , 351 <361>). A notification is to deepen them in case the surgery
rather (see BVerfGE 109, 279 <365>; BVerfGK 9, 62
243 <81>). In these cases, a notification can be omitted in
bb) To the requirements of transparency is one of the principle even if the parties were not significantly
principle of openness of the collection and use of affected by the measure and assume that they have
personal data. The use of the data without the no interest in the alert. One requires judicial
knowledge of the person concerned is constitutionally confirmation of this decision consideration of it.
permissible only if it is otherwise frustrate the purpose
of the investigation, which is used for data retrieval. 246
For the security and the exercise of the functions of b) The relative configuration of a precautionary saving
the intelligence services, the legislature must accept the communication traffic and their use requires
this principle. In contrast, comes in the context of law further ensuring an adequate and effective legal
enforcement also an open collection and use of the sanctions.
data into account (see § 33 para 3 and 4, Code of
Criminal Procedure). Investigative measures to be 247
here in part carried out otherwise with regard to the aa) To ensure effective legal protection is a query or
accused and in his presence (see, for example, § § submission of such data in principle, be placed under
102, 103, 106 Code of Criminal Procedure). court reservation.
Accordingly, the parties before the query or sending
its data to be notified in principle. A secret use of the 248
data may only be provided if it is arranged in According to the jurisprudence of the Constitutional
individual cases and judicial. Court, may be constitutionally necessary preventative
control by an independent body with investigative
244 actions that cause a serious encroachment on basic
As far as the use of data is done in secret, the rights. This is especially true if the fundamental
legislature has the duty to provide at least one operation in secret and is for the person concerned is
subsequent alert. This must ensure that those to not directly visible (see BVerfGE 120, 274 <331>).

31
For the query and transmission of against the use of its telecommunications traffic to the
telecommunications traffic, this may be the case. weir is to address a judicial review to open later.
Given the weight of the inherent in this procedure, the
scope of the legislature reduced the effect that such 252
measures are generally placed under the reservation cc) Finally, is a proportionate design requires
of a judicial order. Judges may, because of their effective sanctions for violations. Would also seriously
personal and material independence and its exclusive injured as a result of the telecommunications secrecy
commitment to the law the rights of the person in remain unpunished, with the consequence that the
case the best and safest true (see BVerfGE 77, 1 protection of personal rights, even if he had found in
<51>, 103, 142 <151>, 120, 274 <332> ). An Article 10 paragraph 1 GG is a particular expression,
exception applies under Article 10 paragraph 2 would wither away, given the intangible nature of this
sentence 2 Basic Law for the control of interventions law (see Federal Constitutional Court, decision of the
in the telecommunications freedom by the intelligence first chamber of the First Senate of 11 November
services. This can serve as a preventive judicial 2009-1 BvR 2853/08 - Juris, para. 21; BGHZ 128, 1
review which - also specifically related to the <15>), this would contradict the obligation of public
particular measure - review by a member appointed authorities, which detail the development of his
by the People's representative body or subsidiary personality to allow (see BVerfGE 35, 202 <220 f.>,
body effects (see BVerfGE 30, 1 <21>). 63, 131 <142 f.>; 96, 56 <64>) and to protect it from
threats to privacy by third parties (see BVerfGE 73,
249 118 <210>; 97, 125 <146>, 99, 185 <194f>; BVerfGK
The legislature has to connect to the commandment 6, 144 <146>). This may be the case if improperly
of preventive judicial review in a specific and obtained data should be widely used freely or
normenklarer form with strict requirements on the unauthorized use of the data for lack of regular
content and the reasoning of the court order (see physical damage would be without one of satisfaction
BVerfGE 109, 279 <358 f.>). From this it also follows of stakeholders serving compensation.
the requirement of a sufficiently substantiated
justification and limitation of the query the desired 253
data, which allows the court only to exercise effective The legislature has broad discretion in this respect
control (see BVerfGE 103, 142 <160 f.>). Only on this but one. In particular, it can take a look at the extent
basis can and must be formed independently of the to which such arrangements fit into the overall
Court ordering a verdict on whether the requested scheme of criminal procedure law or under the liability
use of the data complies with the statutory law. In that regard, he must also consider that in the
requirements. In addition, careful examination of the event of violations of personal rights under applicable
triggering conditions is including in particular the law already bans exploitation both on the basis of an
statutory threshold for intervention. The order of the assessment (see BVerfGE 34, 238 <248 et seq, 80,
court decision must be justified in content. Moreover, 367 <375 f.>; 113, 29 <61 >; BVerfGK 9, 174 <196>;
the data to be transmitted in accordance with the BGHSt 34, 397 <401>, 52, 110 <116>) and a liability
principle of proportionality should be indicated for material damage can be justified (see BVerfGE
sufficiently selective and in a clear way (see BVerfGE 34, 269 <282, 285 f.>; BVerfGK 6, 144 <146 f.>;
103, 142 <151>), so that service providers must not Federal Constitutional Court, decision of the first
make its own substantive examination. This may only chamber of the First Senate of 11 November 2009-1
be based on clear arrangements for transmitting the BvR 2853/08 - Juris, para. 21; BGHZ 128, 1 <12>).
required and justified. For the decision whether we need to sound more
stringent regulations, it is therefore not prevented
250 from observing, first, whether the specific gravity of
The effectiveness of control, it also means that the the infringement of privacy, which in the unauthorized
data resulting from the arrangement of the acquisition or use of this is regularly in question are
telecommunications company will be filtered as data already on the basis of current the right of the
speicherungsverpflichteten third party and transmitted law in the constitutionally required way from being
to the authorities is not a direct access will be opened met.
to the data. In this way, the use of the data on the
interaction of different actors linked to each other and 254
is thus involved in controlling decision-making 4th Less stringent constitutional provisos apply a
structures. precautionary measure only indirect use of the data
stored in the form of official information regarding
251 claims against the service by the subscriber specific
bb) From constitutionally necessary is also initiating IP addresses that they have to identify with the use of
the legal procedure for subsequent monitoring of the the stored data. The creation of such an inquiry is
use of the data. If an interested party prior to the independent of limiting claims of legal or criminal
operation had no opportunity to put up in the courts Proceeding catalogs total admissible as the query
and use of telecommunications traffic itself

32
person concerned, despite a certain similarity to the
255 identification of a telephone number not be equated.
a) For information on the holders of certain IP Telephone numbers are permanently assigned as
addresses to be used for the identification of identifiers exchanged between users, so that a
precaution must be stored communication traffic must search of the holder may also independent of specific
not be given by the otherwise constitutionally apply to telecommunications acts. contrast, was one contains
the use of such data very strict conditions. information about the Connection Owner of a
dynamic IP address is also needed in the information
256 used and by which that port from that IP address at a
Of significance for this is the one that the authorities particular time. In addition, the phone number to
themselves, no knowledge of the received data to be private suppressed without difficulty, while the IP
stored as a precaution. The authorities call in the address can be disguised in principle only with the
context of such information from the claims do not use of anonymizing services. Also, the possible
precautionary anlasslos stored data itself, but only relevance of a query personality of the owner of an IP
receive personal information about the holder of a address other than the owner of a phone number:
particular port, which was determined by the service, even the extent of her contacts, which are each made
using this data. It remains the strength of the data is by calling new website, it is more meaningful than a
strictly limited: the use of precautionary data alone phone query. Also, the knowledge of a contact with a
leads to the inquiry, which was declared under website to another substantive meaning: Since the
Connection Owner of an already known about content of Internet sites other than that in a phone
otherwise determined IP address on the Internet. A conversation spoken word electronically locked and
ruling has its formal structure after a certain similarity longer can be called again, can be with her
to the query of the holder of a phone number. Its reconstruct many reliable, with which the subject of
cognitive value remains circumstantial. Systematic the communicating set apart has. The
fishing expeditions over a longer period, or the individualization of the IP address as the "phone
creation of personality and movement profiles can not number of the Internet are" at the same time
be achieved solely on the basis of such information. revealing the content of communication. The force of
the distinction between external telephone call
257 connection data and call content dissolves here.
Is relevant to the other, that such information is used individualized If the visitor to a specific website using
for only a small portion of fixed from the outset of the information about an IP address, you know not
data, its storage could be arranged by themselves only who he had contact, but usually knows the
with much lower requirements. A dynamic storage contents of the contact.
only the necessary information for such Internet data
to identify IP addresses would have a much less 260
stressful than the weight of almost complete retention Of course, conversely, an increased interest in the
of data from all telecommunications links. The ability to communication links in the Internet of legal
combination of these factors it appears that apply to protection or to safeguard the legal system to assign
the use of telecommunications traffic as a precaution the respective actors. Given the increasing
saved otherwise applicable requirements for such importance of the Internet for the most diverse areas
information is not alike. and processes of everyday life also increases the risk
of its use for crimes and violations of law in a variety
258 of Art and the Internet can not form a legal vacuum.
b) However, the justification of administrative claims The ability of an individual assignment of Internet
information to identify IP addresses of considerable contacts with violations of some significance is
importance. With it, the legislature has one of the therefore legitimate for the legislature. Insofar as
conditions of communication on the Internet and limits similar information from the service under the current
the extent of their anonymity. On their basis, in technical conditions under which IP addresses mainly
connection with the systematic storage of Internet just for the meeting ("dynamic") must be assigned,
data to a large extent the identity of Internet users are telecommunication traffic data are evaluated, thus
determined. Where can individuals who believe throwing this on any fundamental concerns. Nor can
themselves harmed on the Internet, register the the legislature to ensure reliable assignment of these
appropriate IP addresses and display or report to addresses over time, the provision of the relevant
determine the extent of the authority itself IP data or provide a high level of reliance on stored data
addresses assigned to these specific subscribers, is far from the service provider. It has a margin of
and the underlying communication processes are discretion here.
individualized with considerable probability.
261
259 c) Accordingly, should the legislature of such
The assignment can be an IP address to a information independent of limiting legal rights or
Connection Owner of the weight also produces for the crimes catalogs for the prosecution of crimes allow for

33
the security and the performance of duties of the 265
intelligence on the basis of the general a) Where are to be settled in connection with the
fachrechtlichen intervention appropriations (see Bock, obligation of service to a precautionary anlasslosen
in: Geppert / Piepenbrock / contactor / Schuster, retention of communication traffic data security
Beck'scher comment to TKG, 3rd edition 2006, § 113 issues, this responsibility is an integral component of
para. 7; Graulich, in: Arndt / Fetzer / Scherer, the storage requirement and the legal consequences
Telecommunications Act, 2008, § 113 para. 8). associated herewith the federal government under
Regarding the intervention thresholds, however, Article 73 para 1 No 7 GG . This, in addition to the
ensure that the information will not be caught out of arrangements for security of stored data, the rules are
the blue, but only upon a reasonable suspicion or part of the security of the transmission of data and
may be the beginning of a concrete danger to fact- this case to ensure the protection of the trust relations
case basis. The requirement of a based on factual (see above CV 1 and CV 2 e).
evidence in the real risk is paid for the intelligence
services as well as for all to respond to threats to 266
public order and safety authorities. The legal and The Federation is also responsible also for ensuring
factual basis of appropriate information requested the constitutional requirements of a relevant and
must be recorded. A judge must be reserved in sufficiently precise limitation of the uses of the data,
contrast to similar information not be provided. to be pursued with the storage. The reason has to
save this irreducible in the constitutional context of
262 data storage and use, in line with established case
The considerable weight of the interference of such law of the Federal Constitutional Court: data may
information allows not, however, these generally and advance only on specific, sector specific, precise and
unconditionally be allowed in order to monitor or normenklar specified purposes, so that a reasonable
prevent any irregularities. The removal of anonymity assurance already in the storage, that the data be
on the Internet requires at least a legal interest used only for purposes that justify the weight of data
affected, by the law and is otherwise a highlighted storage. A lock can not be justified in the abstract, as
weight attached. This includes similar information for such, but only insofar as it serves sufficiently weighty,
the monitoring or prevention of offenses is not specifically designated purposes (see BVerfGE 65, 1
complete. It must be so far but in order - even in the <46>, 118, 168 <187 f.>). In contrast, it is
case - particularly important Offences act, which must inadmissible, regardless of such purposes to create a
appoint the legislature explicitly. pool of data on stocks, the use according to need and
leave the political discretion of the subsequent
263 decision of various government bodies remains. In
Also, there is no reason to withdraw for the such a case, the constitutionality of the store could
identification of IP addresses the principle of lack of sufficiently predictable and limited purposes at
transparency (see above CV 3). The person the time of lying in the store procedure not yet be
concerned, who can go out in the rule about using the assessed. Their significance for the citizens would be
Internet anonymously, has in principle the right to neither predictable nor limited in accordance with the
know that and why this anonymity was lifted. proportionality principle. This material combination of
Accordingly, the legislature has at least provide storage and use of the data as a key link between
notification obligations as and when thus the purpose intervention and may also justify the interplay of
of the information will not be frustrated or otherwise federal and state governments are not broken. The
overwhelming interests of third parties or the parties competence to provide this link grows, the federal
themselves do not allow this. As far as waiver of government under Article 73 para 1 No 7 GG virtue
notice in accordance with relevant legal regulations, material connection (see III C 2).
exceptionally, the reason is to make this record. One
requires judicial confirmation of the waiver of 267
notification is not in contrast. The restrictions to the federal government in
connection with the storage arrangements
264 accordingly be taken to determine the qualifying
5th The constitutionally required to ensure data conditions for the use of data for purposes of law
security, and a proportionality standard possible enforcement, security, or threat prevention through
normenklaren limit the use of data is an integral part intelligence belongs to the developed above provisos.
of the arrangement of the storage obligation and Again, the necessary regulations are to maintain the
therefore the obligation that imposes the obligation allocation for the further use of the data, particularly in
incumbent federal legislators. In contrast, the the form of identification and logging requirements.
responsibility is directed to the creation of call
provisions themselves and for the design of the 268
transparency and legal protections under the b) In contrast, the federal government depends on the
respective expertise. arrangement of the storage requirement and the
responsibility not simply about whether and how

34
much may be made to the actual data in the context contacted a user on the Internet. Also, the legislature
of the purposes specified by him. The adoption of pursuant to § 113a para 1, 11 TKG six months and a
rules that govern the data call themselves, is not determined partake at subsequent cancellation
fundamentally a federal matter, but depends on the deadline of one month still a constitutionally
general legislative powers. Thereafter, the acceptable storage time. Also can not currently find
authorization will not be to retrieve the data based on that the objective of the scheme in conjunction with
Article 73 para 1 No 7 GG, but is based on each of other regulations on or amounts to create a generally
those skills to create standards which determine the comprehensive data collection to minimize any
legislation for the use of objective data with the tasks reconstructability activities of citizens. Important
(see BVerfGE 113 , 348 <368>, 114, 371 <385>). In insofar as the validity of the data protection legislation
the area of security and the role of intelligence, otherwise widely permeating principle of data
responsibility so widely among countries. Other than economy and numerous deletion obligations with
ensuring the constitutionally required limitation of the those of the legislature to prevent the occurrence of
uses that must be regulated uno actu with the storage avoidable data collections generally are looking for.
for the data protection clamping of intervention and Crucial to this assessment are particular about the
justification, and may require more than just call extent § § 11 ff TMG, which basically require the
authorization and the protection of other constitutional service provider after the Telemedia Act for the
requirements for the design of the data used in deletion of not accounting for the required data (see §
particular the arrangements for notification of 13 para 4 No 2, § 15 TMG) and also to avoid such
individuals and ensuring effective judicial subsequent private incentives that internet content is recorded in
legislative acts of the countries left to stay. The general commercial data collections and thus
responsibility for the constitutionality of these reconstructed remains. TKG § 113a can thus not be
regulations require that these so far directly understood as an expression of general public data
themselves for purposes of law enforcement preparedness and
risk prevention, but despite its vastness a limited
exemption that is trying the special challenges of
VI. modern telecommunications for law enforcement and
security into account.

269 271
The challenged regulations do not meet these 2nd In contrast, it lacks the constitutionally required
requirements. While § 113a does not contradict the for such data collection to ensure a very high safety
Act if only the fundamental right to protection of standards. § 113a para 10 TKG couched in that
telecommunications secrecy under Article 10 respect only the vague permanent duty, through
paragraph 1 GG, because the range of the storage technical and organizational measures to ensure that
requirement would be in accordance with § 113a para access to the stored data is possible only by specially
1-7, 11 TKG disproportionately from the outset. authorized persons, and refers only to the otherwise
However, the rules relate to data security, for the in the telecommunications sector in general due
purposes and to ensure transparency of data use, not diligence. This lack of a requirement that the
to redress the constitutional requirements. This lack particularly high standards and guarantees the
of the proportionality principle corresponding security of comprehensive and meaningful data
development of the system as a whole. § § 113a, collection in accordance with § 113a TKG account.
113b and TKG § 100g Code of Criminal Procedure to The Case for the referenced § § 88 and 109 of the
the extent that the retrieval allowed under § 113a of Act to ensure such very high safety standard does not
the Act to be stored are therefore compatible with allow it, according to its wide scope, multiple
Article 10 paragraph 1 is not GG. relativities. This applies in particular to § 109 of the
Act. Thus, under § 109 paragraph 1 TKG make any
270 service arrangements or other appropriate technical
1st TKG § 113a is unconstitutional not only because measures to protect the secrecy of
of its reach. The legislature may judge ordered him telecommunications and the telecommunications and
storage requirement, extending anlasslos accordance computer systems against unauthorized access. To
with paragraph 1-7 to close to all traffic of publicly determine the appropriateness of use is made to §
available telecommunications services, than for the 109 para 2 sentence 4 of the Act (see Klesczewski,
more effective law enforcement and risk prevention, in: Säcker, Berliner Kommentar zum TKG, 2nd
appropriate, necessary and proportional in the strict edition, 2009, § 109 para. 12). After the measures are
sense (see above C IV). Despite their reach is the appropriate if the necessary technical and economic
regulation on the volume of data collected her limited burden is proportionate to the importance of the
nor sufficient. The content of telephone protected rights. Based on the above-developed
conversations, faxes and e-mails may, as § 113a standards, thus the specific requirements for the
Paragraph 8 clarifies the Act expressly saved as protection of stored data in accordance with § 113a
much as the Internet or service provider, which has TKG are not sufficiently guaranteed. The legally

35
prescribed standard of "reasonable technical protective and evolving legal safety standards. In any
precautions or other measures required" only to use case, lack of commitment to a periodized continuation
the state of technological development "(§ 109 para 2 of the security concept, which could enable an
sentence 2 of the Act; Klesczewski, in: Säcker, effective control in this regard.
Berliner Kommentar zum TKG, 2 ed, 2009, § 109
para. 13), and qualifies the security requirements in 274
ways that remain undetermined in the general The lack of adequate safety standards in the
economy considerations-case basis. Moreover, telecommunications law can compensate also § 9
further specification of this standard remains the BDSG not in connection with the relevant schedule.
choice of the individual telecommunications service Notwithstanding their sometimes abstract high
providers, which must in turn provide their services standards remain the standard that is applicable in
under the conditions of competition and cost any case, is subsidiary (see Fetzer, in: Arndt / Fetzer
pressures. / Scherer, Telecommunications Act, 2008, before §
91 para. 10; Klesczewski, in: Säcker, Berliner
272 comments TKG, 2nd edition, 2009, § 91 para. 15),
A detailing of these requirements is not ensured in too general to draw together in a sufficiently specific
the form of ordinances or by the supervisory and reliable way, the very high safety standards to
authorities. In particular, § 110 TKG not guarantee ensure the Telecommunications Act § 113a for data
the validity of reasonable safety standards. Although to be stored.
in the context of this standard to be created by
subordinate bodies (§ 110 para 2 and 3 of the Act) 275
aspects of data security can be also determined. This has created a very high safety standard for §
However, these - primarily determined by technical 113a to TKG data to be stored is not guaranteed and
objectives - Standard contains no substantive normenklarer in binding form. Neither the
standards in this regard nor does it the aspect of data Speicherungspflichtigen the expert of the
security on otherwise. Moreover, two years after entry respondents in the present method as the core
into force of the storage requirement of § 113a of the elements of these instruments (separate storage,
Act a new regulation which takes account of asymmetric encryption, four eyes "principle,
adjustment of telecommunications regulation does combined with advanced methods for authentication
not occur. Accordingly, it is also - in December 2009 for access to the keys, audit logging of access and
pursuant to § 110 para 3 sentence 3 of the Act on the deletion) set enforceable still other measures must be
website of the Federal Network Agency published imposed on them to ensure a comparable level of
(see the Federal Network Agency, Official Journal, safety. Also, there is a lack of a balanced system of
2009, p. 4706) - Technical Directive on the sanctions, the violation of data security no less weight
implementation of legal measures to monitor the attaches as violations of the storage requirements
telecommunications and information requests for itself is the fines for failure to comply with storage
Traffic (TR-TKÜV) pursuant to § 110 para 3 TKG take requirements significantly wider than that for the
effect until one year after this adjustment (Index 1 breach of data security (§ 149 para 2 sentence 1 in
<Regelungsbereich> TR-TKÜV, Part B, TR-1 conjunction with § 149 para 1 No 36 and 38 of the
<Grundsätzliches> TKÜV). Act). The constitutional requirements for the safety of
data collection, as it is created by the Act § 113a is
273 sufficient to applicable rules, not with it.
A sufficient security guarantees nor § 109 para 3 the
Act. Although the standard requires that operators of 276
telecommunications facilities to designate security 3rd The rules for the transmission and use of the data
officers, and to provide a safety have to present the meet a set of sentence pursuant to § 113b 1 TKG not
Federal Network Agency. Even then, the concept the constitutional requirements.
when he change the underlying "facts" to adapt and
resubmit. However, so that a particularly high 277
standard of safety is not guaranteed reliable. Shall a) incompatible with the developed from the principle
record the provision alone operator, but not the entire of proportionality standards are the first schemes to
target group of the Telecommunications Act § 113a, use the data for law enforcement.
which also includes other service providers. Also
refers to § 109 para 3 TKG material only to the 278
insufficient requirements of § 109 para 1 and 2 of the aa) § 113b sentence 1 No. 1 Telecommunications Act
Act. It is also not guaranteed in sufficiently in connection with § 100g Code of Criminal
normenklarer form a continuous and controlled Procedure does not meet the very strict conditions
adjustment of the safety standards at the state of under which alone is allowed under § 113a TKG
technological development. Is not clear so far stored data be used. It is true that the legislature with
whether § 109 para 3 sentence 4 of the Act also calls these regulations in a differentiated and their
for an adjustment to the technical development of interaction under Article 74 paragraph 1 No. 1 and

36
Article 72 paragraph 1 GG made final destination of the person concerned (§ 100g para 1 sentence 1
the data used for law enforcement. The legislature Code of Criminal Procedure). The constitutional
does it for the use of the data, however, meet similar requirements for transparency in the use of data allow
requirements as previously for the collection of a secret survey of the stored data according to §
telecommunications traffic data were considered by 113a Telecommunications Act only if it is arranged on
the service provider may save in accordance with compelling reasons required by law closer to
their operational and contractual requirements in a concretizing and judicial.
more limited extent and for the individuals by contract
partially avoidable pursuant to § 96 TKG . This 281
reflects the very serious operation, which is the cc) The design of the notification requirement is not
precaution anlasslosen and systematic data of § 113a sufficient in all respects by the developed above
Telecommunications Act does not sufficiently provisos. However, the scope of the proposed
account. notification requirements, as such, no constitutional
objections is exposed. § 101 paragraph 1, 4 and 5,
279 Code of Criminal Procedure provides, in line with the
Already § 100g para 1 sentence 1 No. 1 Code of jurisprudence of the Constitutional Court (see
Criminal Procedure does not guarantee that may be BVerfGE 109, 279 <363 et seq), differentiated
general and also in individual cases, only serious regulations, the principle of a subsequent notice to
crimes rise to a collection of appropriate data, but can the affected constitutionally viable in compensation to
- regardless of a final catalog - generally suffice major bring in most exceptional case conflicting interests.
criminal offenses . Certainly remains § 100g para 1 Not open to criticism in that regard in particular, that
sentence 1 No. 2, sentence 2 StPO back behind the are concerned to notify, on which the data query is
constitutional provisos, by whatever their gravity any not related, in accordance with § 101 paragraph 4,
offense committed by means of telecommunication in sentence 4 Code of Criminal Procedure is not in
accordance with a general consideration as part of a every case, but only in accordance with an
proportionality test can suffice as a possible source of assessment. As part of this assessment can and
a data query . With this scheme, the stored data in should the interests of those affected indirectly, due
accordance with § 113a TKG be of practical use in account should be taken into account.
relation to all offenses. Your use loses view of the
ongoing importance of telecommunications in 282
everyday life exceptional. The legislature is limited to may be insufficiently contrast, the rules for judicial
not place the use of data for the prosecution of review to cases in which notification omitted. § 101
serious crimes, but goes about this - and thus also on paragraph 6 Code of Criminal Procedure provides for
the European law specified purpose of data storage, judicial review only for the deferral, the notice referred
limited in their turn solely on the prosecution of to in § 101 paragraph 5 Code of Criminal Procedure,
serious crimes without the inclusion of risk prevention but not for the waiver of notice pursuant to § 101
- far out. Although the use of this data, especially for paragraph 4 of Criminal Procedure. This reflects the
the prosecution of crimes committed by means of high priority of alert for a transparent use of the stored
telecommunication to be very useful, so harder to data according to § 113a Telecommunications Act
restrict the Enlightenment, in some cases or may does not sufficiently account. Where a data query
even prevent. It is, however, in the nature of the relates directly to traffic of a particular person, may be
guarantee of Article 10 paragraph 1 GG and related waived its subsequent notification only after a judicial
requirements of proportionality, that not every review of the relevant exceptions apply. At one such
measure that is useful for law enforcement and in control is lacking in those cases should be required in
some cases also may be necessary to constitutionally those of a notice pursuant to § 101 paragraph 4
permissible. Conversely, in consequence of this the sentence 3 Code of Criminal Procedure because the
relevant requirements of telecommunications in the overwhelming concerns of an affected person.
area of lesser offenses do not total to the legal
vacuum: the information required under § 113 para 1 283
of the TKG, the legislature - even under the indirect dd) In contrast, judicial review of the data query and
use of the stored data according to § 113a TKG - for data use is granted even in a manner consistent with
the enlightenment provide for all offenses (see CV 4 the constitutional requirements. The collection of
c). Similarly, thereby recourse pursuant to § 100g stored data in accordance with § 113a
Code of Criminal Procedure is on otherwise than in Telecommunications Act requires, according to §
accordance with § 113a TKG stored communication 100g para 2 sentence 1, § 100b paragraph 1
traffic possible. sentence 1 of the Code of Criminal Procedure order
by the judge. The court order authorized the
280 authorities not to a direct access to the data, but
bb) No constitutional requirements § 100g Criminal requires the service provider own this as an interim
Procedure Code continues to the extent that it allows arrangement according to the requirements of filtering
in principle a data retrieval even without knowledge of out and reported. Furthermore, there is according to §

37
101 paragraph 1, section 7, first 2-4 Code of Criminal data according to § 113a TKG are included for
Procedure, the possibility of subsequent judicial purposes of security and the performance of duties by
review of the legality of bringing about the action. the intelligence services. Although such rules are
That these laws guarantee an effective remedy is not constitutionally indispensable. The federal legislator
total, is not apparent. was allowed to it with the retrieval of the data related
to the respective schemes are a matter for the
284 professional laws and leave it where appropriate, by
Not regulated sufficiently normenklar however, the state laws.
statutory provisions regarding formal requirements for
the judicial order. § 100g para 2 in connection with § 287
100b para 2 Code of Criminal Procedure lays down c) The refinement of the use of the stored data
minimum requirements for a decision by formula, but according to § 113a TKG is disproportionate since, as
otherwise the general duty to give reasons applies to is provided for the transfer of any protection of trust
decisions under § 34 of Criminal Procedure. The relationships. At least for a narrow circle of dependent
legislature should consider a new system, whether it special confidentiality of communication lines, such a
would be helpful to the strict requirements of a protection is necessary in principle (see above CV 2 e
statement of reasons of judicial orders (see BVerfGE at the end).
103, 142 <151>, 107, 299 <325>, 109, 279 <358 f.>)
by to give a special and differential provision reprint. 288
In any case, is to ensure by law that the volume of 4th Finally, also satisfies § 113b sentence 1 sentence
data to be transmitted in the order in a manner 2 of the TKG, the indirect use of the stored data
consistent with the proportionality principle sufficiently according to § 113a TKG for information from the
selective and for the service is clearly described. service provider according to § 113 para 1 provides
for the Act, not in all respects with the requirements of
85 proportionality.
b) The challenged regulations do not meet the
constitutional requirements with a view to extracting 289
and using the stored data according to § 113a TKG After the above-developed standards, it is subject,
for security and for the functions of the intelligence. § however, no constitutional concerns that legislators in
113b sentence 1 No 2 and 3 of the Act meets the § 113b sentence 1 sentence 2 TKG information about
requirements for a reasonable limitation of the uses of the Connection Owner of certain authorities is already
his investment by not already. The federal legislature known IP addresses not covered by the very strict
is content here with a sketch in just generalizing way, conditions, for an immediate retrieval of according to
the task fields for which a data retrieval should be § 113a TKG stored data must be considered. It is not
possible, without specifically naming the uses. He objectionable to the extent that, under § 113b
leaves the concrete rather later legislation, in sentence 1 sentence 2 in conjunction with the Act §
particular the legislation by the states. He is his 113 paragraph 1 TKG such information without prior
responsibility for the constitutionally required judicial authorization for the prosecution of crimes of
limitation of the uses listed in no. If he orders the all types and generally acceptable for the tasks of
storage of telecommunications traffic, it is up to him at security and intelligence services are . Not quite clear
the same time, the necessary constitutional the scheme is to identify the required intervention
justification for their uses, intervention and the thresholds. In a constitutional interpretation, they can,
purpose to ensure the necessary follow rules set out however, understood in the sense that § Points 113
binding. Such provisions do not contain a clause § paragraph 1 TKG to the relevant specific legislation
113b Act. Rather, the obligation of service for interference basis and to access the data at least a
preventive retention of all telecommunications traffic, reasonable suspicion pursuant to § § 161, 163 Code
while the release of this data for use by the police and of Criminal Procedure or a specific risk under the
the intelligence services under nearly the whole task police general clauses requires (see Bock, in:
a set of diverse and unlimited use of open data pool, Geppert / Piepenbrock / contactor / Schuster,
to the - only by rough objectives limited - in each case Beck'scher comment to TKG, 3rd edition 2006, § 113
on its own decisions, the legislature access to federal para. 7; Graulich, in: Arndt / Fetzer / Scherer, TKG,
and state governments can. The provision of such a 2008, § 113 para. 8). The intervention threshold of
purpose being to open its data pool picks up the real risk, the provision in a constitutional interpretation
necessary connection between storage and storage of the intelligence and requests for information be
purposes and is not compatible with the Constitution removed.
(see above CV 5 a).
290
286 Also by way of constitutional interpretation can track
Not to criticize other hand, is that in § 113b TKG no any abuse of the provision to circumvent the Code of
comprehensive regulations on notification obligations Criminal Procedure § 100g are met. § 113b
or to judicial review in the event of use of the stored authorizes a sentence of clause 2, in conjunction with

38
§ 113 para 1 of the TKG in constitutional 1st The imposition of storage obligations relating to
understanding not open to query the authorities to the complainant, at least so far as they also own a
subscribers, the telecommunications links that are not publicly available anonymizing server operates is,
known. Rather, he allowed his grounds of the Law however, an interference with their professional
according to the express direction only information on freedom dar. As a commercial provider an anonymity
individuals, the authorities previously known IP service they can rely on the professional freedom
addresses (see Bundestag document 16/6979, p. 46). under Article 12 paragraph 1 GG called. The scheme
The legislature may consider necessary under the has objectively berufsregelnde trend. The storage
new rules, if he sees an opportunity to clarify this law. requirements are addressed to those service
A unconstitutionality of § 113b sentence 1 sentence 2 providers who provide public telecommunications
in conjunction with § 113 paragraph 1 TKG has so far services in the rule for consideration for end-users
not evident. (see § 113a para 1, § 3 No. 24 TKG) and therefore to
service providers who offer services in any case
291 typically for commercial purposes.
In terms of proportionality, largely § 113b sentence 1
sentence 2 in conjunction with § 113 paragraph 1 295
TKG is the extent that it can be sufficient, generally, When the surgery is a professional system. This is
the punishment of offenses for such queries. While regulated in § 113a TKG a storage and set a phrase
the legislature is in accordance with the above in § 113b 1 TKG a delivery obligation, present
stipulations developed denied, in principle, similar themselves as technical stipulations for the provision
information in the most important cases in the area of of telecommunications services. Is mistaken,
the offense right to use (see above CV 4 c). There is however, the argument that the storage requirement
a need for this, however normenklarer of specific to act as an anonymizing services career scheme
regulations to which it is lacking in this case. § 113b because a final anonymity can no longer be offered.
unconstitutional sentence of a sentence 2 in Although a regime of occupation is not only
conjunction with § 113 paragraph 1 TKG also is also considered if access is restricted by law to practice a
in so far as there are no rules to a notification of profession, but even if the meaningful exercise of a
individuals. Pursuant to § 113 para 1, sentence 4 of profession is made virtually impossible (see BVerfGE
the Telecommunications Act Auskunftsverpflichteten 30, 292 <313>). However, the storage requirement
must safeguard against the person concerned to leads to § 113a para 6 TKG does not mean that
disclose, and also by the inquiring authority is no anonymization services generally can not be
guarantee notification. This meets the constitutional operated. The anonymizing services can offer their
requirements for a transparent use of the stored data users continue to surf without possible identification
according to § 113a TKG not (see above CV 3 a). of the IP address through a private on the Internet.
They thus allow users to have a static (and hence
292 open) IP address to hide their identity and protect
5th In summary, neither the legal requirements for other users from hackers or other illegal access.
data security or the rules enough to use the data Repealed the anonymity only to the state authorities,
according to § 113b sentence 1 No. 1 while even if the strict conditions for the direct use of
Telecommunications Act in connection with § 100g stored according to § 113a TKG traffic data, a data
Code of Criminal Procedure, § 113b sentence 1 No 2 retrieval is an exceptional basis. Therefore only be
and 3 of the Act and § 113b sentence 1 sentence 2 held so that customers whose anonymity is against
TKG the constitutional requirements. Thus it lacks the the interest in these particularly serious cases,
same time the storage requirement of § 113a of the investigating authorities. The offer of a cascade is
Act itself a constitutionally viable justification. The thus not a total invalid.
challenged regulations are generally not compatible
with Article 10 paragraph 1 GG therefore compatible. 296
2nd The reasoned by the imposition of obligations
storage interference is justified by the Constitution. It
VII is neither disproportionate nor effort in the technical
terms of the associated financial burden.
293
In contrast, the challenged provisions regarding 297
Article 12 paragraph 1 GG, where it must be decided Interference in the practice of freedom must be
in these proceedings thereon, subject to any justified by sufficient reasons in the public (see
constitutional concerns. The complainant on 4) in a BVerfGE 94, 372 <390>, 101, 331 <347>, 121, 317
procedure BvR 256/08 is not affected by the <346>). Basically sound reasons of public policy
challenged provisions and the related financial sufficient (see BVerfGE 7, 377 <405 f.>, 16, 286
burden violated their professional freedom. <297>, 81, 156 <189>; established case-law). Here
too, the requirements of the proportionality principle,
294 which means the intervention must be to achieve the

39
engagement objectives, appropriate, necessary and security. Report this particular is not because private
proportionate in the strict sense. These conditions are companies would thus inadmissible entrusted with the
fulfilled here. State. A categorical separation of "state functions"
and "private activities" with the consequence of the
298 fundamental inadmissibility of enslavement for public
a) The storage and transmission requirements are purposes by private individuals on their costs can not
also legitimate in terms of invasion, the professional be inferred from the Constitution. Rather, the
freedom of the objectives of more effective law legislature has a wide discretion, the obligations of
enforcement, security and the role of secret services. common interests to ensure it has imposed in the
They are based on reasonable grounds that the private course of their work (see BVerfGE 109, 64
public interest for whose support they are suited. A <85>). Basically, it can load and measures to
less intrusive regulation, which is not as effective and safeguard common interests that are required
inexpensive for the public sector, is shown. Because regulation as a result of commercial activities, the
the communication traffic will not occur since the relevant market actors to impose in order to integrate
privatization of the telecommunications sector with the associated costs in this way in the market and the
the state, this is in turn to a direct recording is not in market price. The legislator is not confined to private
the situation. A production of any connection to the use only in service when their professional activity
state, so this makes the storage separates itself, can cause immediate danger or they are directly
because of the associated risks both for the regarding these risks is at fault. Rather, so far
protection of telecommunications secrecy and for the reaches a sufficient factual and responsibility
safety and completeness of the data. Also, the proximity between the occupation and imposed the
necessity does not apply to breaches of employment obligation (see BVerfGE 95, 173 <187>).
by the imposition of costs borne or costly obligations
not simply because a financing would be the mission 302
from tax for individuals of a less restrictive means Subsequent to this, against the cost burden arising
(see BVerfGE 81, 156 <193 f.>; 109, 64 <86>). Milder Speicherungspflichtigen no fundamental objections.
agents are not those that move only a cost burden The legislature moved in this way associated with the
(see BVerfGE 103, 172 <183 f.>; 109, 64 <86>). storage costs in accordance with the privatization of
the telecommunications sector as a whole in the
299 market. Just as the telecommunications company of
b) The imposition of the storage requirement has the new opportunities to use telecommunications
made to the relevant service providers are typically technology to make a profit, they must shoulder the
not overly burdensome. costs for the containment of the new security risks
associated with telecommunications, and process in
300 their prices. The obligations imposed on companies
aa) The storage requirement exceeds the limit of are closely related to the services they provide and
admissibility, not by the technical effort, they can even be provided as such from them. Also here
demanded of the service providers. Since moving to are not imposed on individual service providers a
the relevant service provider in the case-specific victims, but designed in a general form
telecommunications market, they have already a high the framework for the provision of
level of technical mastery in the field of telecommunications services. It is therefore not
telecommunications data collection, storage and constitutionally objectionable if the companies have
processing have. These skills have also small this then bear the costs principle. But the law does
enterprises in this sector. Moreover, at least a not gemeinwohlbezogene aim to provide a charge for
majority under § 113a of the Act is to be stored in any this (see BVerfGE 30, 292 <311>). A law that
case by the relevant telecommunications company regulates the profession in the way that private
saved temporarily for their own purposes. Demanding individuals in the exercise of their professional
organizational requirements to ensure data security obligations imposed on it regularly and cover a
arise not only from the storage requirement of § 113a multitude of people is not already considered
TKG, but from the very subject matter of the offered disproportionate when it charged unreasonable
services of the companies concerned. To that extent individual concerned, but only if at a larger affected
the imposition of specific obligations in accordance group violated the prohibition of abuse (see BVerfGE
with § 113a TKG not disproportionate in technical and 30, 292 <316>). have that the cost burdens in this
organizational terms. way choking effects is neither substantiated nor made
visible.
301
bb) disproportionate retention requirement is not in 303
relation to the financial burden on companies grow by It is to be examined further whether or not concerning
the storage requirement of § 113a of the particular groups of cases (see BVerfGE 30, 292
Telecommunications Act and subsequent obligations <327>) or special situations from the perspective of
therein connected therewith as ensuring data proportionality hardship rules are necessary. For at

40
least this is clear from the arguments of the The decision on the reimbursement of expenses is
complainant on 4) in a procedure BvR 256/08 based on § 34a para 2 Federal Constitutional Court
nothing. In particular, it has also in relation to an Act.
anonymization services on the satisfaction with other
telecommunications companies in excess burden for 308Die decision was adopted unanimously as
themselves or for other providers of such services by regards the European law issues, the formal
concrete evidence to understand numbers. Only Constitution and the fundamental compatibility of
under this condition could be ascertained to exceed provisions of the Constitution of telecommunications
the legislative discretion in the enslavement of traffic data in the result. Regard to the review of § §
anonymization services. As long as the assessment 113a and 113b the Act to be unconstitutional, it is the
is made by the legislature only by conjecture and result of 7-1 votes, and for more on substantive
allegations in question, the Federal Constitutional issues, so far as appears from the dissenting votes,
Court does not examine this issue (see BVerfGE 114, taken after a 6-2 vote.
196 <248>).
309
304 That the provisions in § 95 para 3 sentence 1 Federal
No fundamental concerns about possible remaining Constitutional Court Act are declared invalid and
cost burden is also subject to the requirements of incompatible not only with the Constitution, the
data according to § 113b sentence 1 No. 1 Senate has decided by 4-4 votes. Accordingly, the
Telecommunications Act in connection with § 100g rules are not applied to a limited extent transitional
Code of Criminal Procedure, to which the legislature further, but it remains the statutory standard
a compensation scheme has provided for (see § 23 consequence of the annulment.
para 1 Court Payment and Compensation Act). The
envisaged compensation claims are not the subject of Paper
these proceedings. Hohmann Dennhardt
Bryde
Gaier
VIII Eichberger
Schluckebier
Kirchhof
305 Masing
The further result from the fundamental rights, insofar
as their alleged injury is permitted, no further
demands on the challenged provisions.

Dissenting opinion of Judge Schluckebier


IX.
the ruling of the First Senate of 2 March 2010

306 - 1 BvR 256/08 -


The infringement of the fundamental right to - 1 BvR 263/08 -
protection of telecommunications secrecy under - 1 BvR 586/08 –
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 310
traffic can be levied in accordance with § 113a Act. I can not the decision in the result and in much of the
The affected standards are therefore to explain in reasoning of the considerations outlined below agree.
determining fundamental breach invalid (cf. § 95 para
1 sentence 1 and § 95 para 3 sentence 1 of the 311
FCC). Accordingly, the interim due to the The retention of the traffic wrote the Senate to the
arrangement of 11 March 2008 and 28 be in October effect of a very serious interference with the
2008, by service in the context of requests for fundamental right under Article 10 GG. I believe that
information collected for the time being but not such a procedure is indeed attach particular weight:
deleted immediately transmitted to the requesting he turns out to be compared to content-control
authorities, but saved telecommunications traffic. You measures as of significantly lesser severity (I.). I
may no longer be forwarded to the requesting consider the costs imposed by the retention of traffic
agencies. and criminal proceedings access control intervention
beyond the face of the legislators' objectives,
307 including the Enlightenment and of offenses in
individual cases of major importance, or via
telecommunications committed, however, difficult

41
unclarifiable are constitutional in principle justified. exceptional cases, when they prove themselves on
The underlying rules to keep my opinion of the the whole to attach decisive importance in weighting
proportionality test in the strict sense, a particular the storage and this fully be used.
adequacy and reasonableness test was essentially
(see II). This excludes only the content requirements 314
are to ensure the security of data to be stored and The Senate has already in its ruling of 12th March
transmitted communication traffic, so far I agree with 2003 (BVerfGE 107, 299 <322>) for release of
the Senate majority, without that 'the further take up. connection of telecommunications, which were
The legal consequence would be saying on the basis related to telephone calls, underline that the weight of
of the assessment, the Senate majority of the the surgery - then across the call - behind the left on
annulment of the contested provisions in sight, in my communication content related telephone tapping, of
opinion was, it should have been in accordance with course, but still large was. Although in this case given
the interim measures taken by the Senate until a new the widespread view of the storage requirement and
arrangement for further deems applicable (see III.). 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
I. surgery, such as those for the acoustic surveillance of
private homes or in online searches of information
technology systems, but also in the content
312 monitoring and evaluation of telecommunications
The Senate majority sees the retention of traffic data through direct access of state organs available and
for a period of six months for the service was very where, moreover - unlike here - is particularly the risk
serious encroachment on the fundamental right under that the absolutely protected core area of private life
Article 10 paragraph 1 GG. This weighting I do not is concerned. The collection of traffic data of all
share. telecommunications contacts with the private
providers without notice by the public power and
313 under tight material conditions separately, the
The telecommunications secrecy protects the possibility of - a regular basis on the enforcement
contents and the circumstances of the communication level by the ordering judge reviewed and strictly
before taken notice of the public authorities (see limited - query as procedural, backed measures -
BVerfGE 100, 313 <358>, 106, 28 <37>, 107, 299 such as those provided for the collection under §
<312 f.>). If we write the obligations of the private 100g Code of Criminal Procedure are justified -
service providers to store (§ 113a TKG) engagement however, from the perspective of the individual
quality, because providers' auxiliaries of the state concerned fundamental institution not thus serious
were "and this was therefore attributable to the encroachment on basic rights that would justify this
retention gains, so for assessing the intensity of the rate as "very serious" and therefore classified as one
interference, the fact of particular importance that, of the größtdenkbaren interference with the
before a possible access by state agencies, the traffic fundamental right. After that surgery remains a result
only in the sphere of private service providers remain. of storage with the private provider that can be
You are in the hands of the contractor, which the characterized as particularly weighty. This distinction
services to be used taker entgegenbringt that when further gains its importance in assessing the
the contract conclusions of this kind presupposed reasonableness of the challenged provisions.
basic trust, this would treat any case, first made
operational and billing to technical reasons resulting
data strictly confidential and ensure their protection. II
Moreover, the potential for the state of the art
appropriate level of data security is ensured, thus
lacking any basis for adopting an objectified 315
eingriffsintensivierenden intimidation effect or one - The challenged regulations on the storage
as the Court put it - "feeling of constant requirement and the collection of traffic data for law
Überwachtwerdens" and the "diffuse threat." In enforcement - are different from the assessment of
addition, the recording is not secret, but because of the Senate majority - not inappropriately, they are
advertised Act. Its subject is not the content of also reasonable for the parties concerned and
telecommunications operations. As far as the traffic therefore relatively proper.
permit limited conclusions on such content or even
enable the production of motion pictures and social 316
profile, this concerns the question of proportionality of 1st The rules satisfy the need for adequacy and
the corresponding access rules and respect the reasonableness as sufficient discharge of the
proportionality requirements of the law level. That proportionality principle into account. Based on an
such intrusive done in individual uses in existence overall balance between the seriousness of the
according weighty reasons, it does not justify them as procedure in Article 10 paragraph 1 GG and weight of

42
the reasons justifying it turns out that the legislature its community-and Gemeinschaftsgebundenheit
has maintained this requirement limits flowing. degree of harm that the legal rights of protection and
fundamental rights of others citizens, but also serve
317 its own protection (see BVerfGE 4, 7 <15>, 33, 303
The requirement of proportionality in the strict sense <334>, 50, 166 <175>). It is also clear view to be
requires that the seriousness not of surgery for a total given to the legislature a room to its regulatory
consideration may be disproportionate to the weight compensation, both to protect the freedoms of the
of the reasons justifying it (see BVerfGE 90, 145 fundamental institution, the other to create but those
<173>, 92, 277 <327>, 109, 279 <349 et seq, 115, legal framework to provide effective protection of
320 <345>). In the tension between the duty of the fundamental rights and legal interests of citizens
state to legally protected rights protection and the against injury and the investigation of punishable by
interests of the individual in protecting his guaranteed appropriate and reasonable resources to enable
by the constitutional rights it is first task of the effective.
legislature to achieve in an abstract way of
reconciling the conflicting interests (see BVerfGE 320
109, 279 <350 >, 115, 320 <346>). He is there - 2nd The legislature has dealt with the requirement for
which in the approach the Senate majority proceeds storage of telecommunications traffic data for a period
terminology - an Assessment and discretion. of six months, the intended use legislation and the
criminal proceedings charging scheme in which he
318 held constitutionally rightful design framework. The
In evaluating the constitutional adequacy of the proceeding from the contested provisions impairment
scheme is the main point to consider that for those affected by the traffic data
fundamental rights are not exhausted by it to fight off telecommunications operators in respect of the
interference by government. Strength of their protected rights and legal interests not to place undue
objective-legal dimension follows from them the duty and unreasonable, on the other side of the to-find
of the state to protect the citizens against attacks. compensation is legislative weighting of the protection
This duty to protect includes the duty to take of the injured by crime legal rights of individuals and
appropriate measures to prevent the infringement of the community and the corresponding defensive
legal interests, if necessary, educate, assign threats in the age very far-reaching expansion of
responsibility for them and the right to restore peace electronic communication, which often leave little
(see, Jutta Limbach, AnwBl 2002, p. 454). In this trace. This looks, in principle, the Senate majority, so
sense, is one of the ensure the protection of citizens this aspect into account, but only in assessing the
and their fundamental rights and the foundations of question of the appropriateness and necessity of the
the community and the prevention of significant crime rules, puts it, however, not explicitly in a
at the same time as the Enlightenment to the reasonableness review, the interests concerned really
conditions of peaceful coexistence and the carefree "is another in a relationship".
use of the fundamental rights by the citizens.
Effective investigation of crime and effective security 321
are therefore not per se a threat to the freedom of a) the legislature when abstract balance in question
citizens, however, is not permitted without measure are legally protected rights and interests in the
and limit. They are offered in the context of tension between "freedom and security" first rightful
appropriate and reasonable to protect the use of design space (see BVerfGE 109, 279 <350>, 115,
fundamental rights and to protect the legal interests of 320 <346>) is determined by the nature of the
the individual. The citizen must be in the regulatory objects and the reality of the scheme to be
constitutional right to effective protection by the state met, with marked. Therefore, the purpose and
can leave the same as on the protection against the effectiveness of the schemes also in assessing the
state (see Di Fabio, NJW 2008, p. 421 <422>). adequacy and reasonableness of taking in the view.
Accordingly, the Federal government as the author of
peace and for order described, and by him 322
acknowledged to be guaranteed the security of its The legislature has fundamentally reformed the law
citizens as a constitutional value that is consistent on the reform of telecommunications and other
with others in the same rank and indispensable, undercover investigative measures and the
because the institution of the state derives also on implementation of Directive 2006/24/EC of the system
their justification (see BVerfGE 49, 24 <56 f.>, 115, of criminal procedure covert investigative methods.
320 <346>). He has drawn in a very careful manner to opinion
formulated, an extensive discussion in the law, but
319 also reviews the prosecutor and police practice (see
In the balancing of conflicting interests by the Bundestag document 16/5846 Law, p. 1). In the
legislator who has to create the legal basis for the parliamentary process is a detailed consultation of
investigation of crime and security services, experts made (see the minutes of the 73rd and 74th
considering also that individuals are be expected in meeting of the Legal Committee of the German

43
Bundestag, 16th legislative period, on 19 and 21 the flat rate billing, p. 59 for volume of traffic over
September 2007). The effort was also to implement broadband connections).
the previously present law of the Federal
Constitutional Court. The law was eventually adopted 324
by a huge majority (see plenary of the German Under these circumstances, it may not be in principle
Bundestag, 16th legislative term, 124th meeting on 9 the legislature failed to give attention to the protection
November 2007, p. 13 009 (D), see also the of the legal rights of victims of crime on the
introduction speech by Federal Minister of Justice effectiveness of the remedies available to him means
Brigitte Zypries, op plenary p. 12 994 f.). The and to the changed situation - even by the obligation
legislators wanted new technical developments into of service in their sphere keep traffic data for a certain
account, as it particularly difficult to clarify duration and hold - to stop. The pace of state
indeterminate crime, transaction and economic crime institutions with the technological progress can then
as well as crimes committed with the use of modern be understood not merely as a useful round out the
communication technologies (see Bundestag arsenal of criminological investigation, which
document 16/5846 Bill, p. 2), even the has attached complements remains effective conventional
to this issue in the regulations impact. It was further measures of investigation, but is against the
the stated aim of the imperative needs of effective background of the displacement of traditional forms of
law-based criminal justice into account, whose job it communication through to electronic communications,
is to create within the limits of their justice and peace including the subsequent digital processing and
law. This objective, the discoverability of the facts storage to be seen. For effective law enforcement
necessary to inform in advance in principle (ibid. p. and security not only in relation to serious crime, but
22). It is the legislature also assumed that the very also for the investigation of crimes that are of major
communication traffic due to the technical importance in a particular case or to be committed by
development towards flat rates - unlike of past time, means of telecommunication, but are without access
just as the connection of telephony, many months to heavy traffic unclarifiable, the availability of traffic
were available - often either are not even stored or for a period of six months is not objectionable
already deleted once before may be a court order to assessment of the legislature is of great importance
disclose information obtained or even necessary for (see BVerfGE 115, 166 <192 et seq, see also Federal
such a request information previously identified (ibid. Constitutional Court, 1st Chamber of the Second
p. 27). It is also widely known that even in the Internet Court decision of 22 August 2006-2 BvR 1345 / 03 -,
and even crimes are committed. The social reality, NJW 2007, p. 351 <355>).
which includes the presence of crime, is formed here
from the various divisions in the area of 325
telecommunications. If the legislature responds to The Senate majority recognizes accordingly, that the
this, which, according to his assessment required but increased use complicated electronic or digital
only effectively possible if the corresponding traffic communication and its penetration into almost all
data subject for a certain period of storage and areas of life, the law enforcement, as well as security
storage requirement, it applies to the service and advanced communication technologies in the
providers, it is not in principle inappropriate and the commission of various crimes are increasingly being
fundamental institutions, whose data it is reasonable used and there to the improvement and crime
to expect. Such precautionary knows the law in other contribute. They weighted this development but with
fields, for example - without this being directly the proportionality test in the strict sense, not to the
comparable - in the field of Einwohnermeldepflichten necessary extent for my opinion.
or suspensions of the so-called account information
by the banks (see § 24c KWG, BVerfGE 118, 168). 326
b) The Senate majority also restricts the assessments
323 and flexibility for the legislature to meet on the field of
That is not the approach adopted by the legislature is crime intelligence and security to protect people
out of balance, a certain degree of comfort is also adequate and reasonable rules, a practical result in
reflected in the Annual Report 2008/2009 of the the almost complete. So that it is also the
Federal Network Agency, showing the evolution of constitutional principle of judicial restraint ("judicial
the number of different approaches to voice and other self-restraint") to conceptual decisions of
data communication in recent years. The report democratically elected legislators are not sufficiently
shows impressively the exorbitant rates of increase in addressed. It gives the legislature a legal system until
the number of connections, but above all of the the details on the nature of an action guide that it
information exchanged in the network voice and data leaves no room for a significant solution which the
volumes. It demonstrates that the communication existing, developed relationships in the
behavior of people in recent years has fundamentally telecommunications sector will meet for its
changed (cf. ibid p. 38 about the DSL connections, p. assessment.
50 to encourage participation in the mobile networks,
p. 53 Sprachvolumen to cellular, the growth rates in 327

44
The ruling is a storage period of six months - that the detailed requirements for the use of traffic data for
required by the EC directive minimum - as in the security purposes and for purposes of intelligence.
ceiling before lying down and possibly constitutionally
rechtfertigungsfähig, wrote to the legislature before of 330
control that the intended use legislation also contains 4th The Senate denied the legislature finally the
the access conditions have limited him to a catalog retrieval of traffic data for the investigation of crimes
deeds Technology in criminal law and exclude the that are not described in the current catalog of § 100a
possibility of the use of traffic also to educate para 2 Code of Criminal Procedure, but in individual
committed by means of telecommunications difficult cases are still of considerable importance, and of
inexplicable crimes and expands the notification such acts which are committed through
obligations and the legal minimum requirements of a telecommunication (§ 100g para 1 sentence 1 No. 1
certain kind then left to the legislature, no significant and 2, Code of Criminal Procedure). He also is not
room left for a refinement in our own political sufficiently taken into account the weight of the
responsibility. He is essentially limited to the edges of eligible offenses, and - as far as the legislature
the catalog for the criminal proceedings polling deemed it difficult unclarifiable - their importance for
slightly adapt and change. He must implement the the effective investigation of crimes. In the case of
ruling, he will not waive a revision to Community law. No. 1 of § 100g para 1 sentence 1 Code of Criminal
This replaces the verdict in practice to the legislation Procedure, the legislature is based on criteria set by
to the Senate for the details of a constitutionally the Senate in its ruling of 12th has in March 2003
permissible only considered scheme. (BVerfGE 107 approved, 299 <322>) for release of
connection of telecommunications. There, the Senate
328 pointed out that that intervention is justified only for
3rd The Senate majority calls for the legislature to offenses which attaches to the legislature a general
create, in the context of the purpose of determining focus on and to have considerable importance in this
the same time, clarity on the access conditions and case also, as a result of the damage, and the levels
verfahrenssichernde requirements. Protect it from the of threat to the public. I do not see that the Senate
legislature the control system able to work with a would not there complained of interference threshold
system of complementary legal bases, as is in other for accessing so-called traffic-weighted stocks
areas so far been without challenge. Thus, the fundamentally different. The proportionality test then
Senate Constitution about the so-called account the responsibility of the case in question, making the
information decision is not contested that the demand ordering judge, who also include the weight of access
for the performance of other regulated legal tasks to the traffic in each case to weigh in with and to be
may be required are described must call event and limited by the text of his order.
eligibility in a different law (see BVerfGE 118, 168
<191>) . Use information deemed insufficient, the 331
Senate however, was in the decision to so-called With regard to the wishes via telecommunications
automatic number plate recognition, where the acts committed for the excluded, the Senate access
challenged law, however, made no statement of to the data stored in accordance with § 113a TKG
purpose, and therefore all possible uses were also know traffic is not weighted enough that the
included (see BVerfGE 120, 378 <409>). The case legislature starts here of considerable educational
here is different, however (§ 113b TKG). It is difficulties. These can appear next to the specific
therefore just the norm clarity and, if those legal weight of the aufzuklärenden fact, the retrieval of
requirements and stipulations that lead to the outstretched traffic to be appropriate, especially as
significant intensification of the procedure by though equipped - as here - the legislature, the
retrieving the data that are regulated in a specific retrieval conditions with strict subsidiarity clause
area each rechtsgebietsbezogenen independent giving the measure is admissible only if the
normative structure. Both schemes are naturally investigation of the facts or to determine the
subject - possibly also in their interaction - the whereabouts of the suspect by other means would be
constitutional requirements and the Constitutional futile and the collection of data - even in the case - in
Court review. Even when compared to a national proportion to the importance of the matter is (§ 100g
legislature of the federal legislature the responsibility para 1 sentence 2 Code of Criminal Procedure).
for the storage of traffic data bears any additional
regulation in their country must also satisfy the 332
Constitution. A legal protection deficit can not As it is for the legislature to ensure effective law
therefore arise. enforcement and to preclude any significant gaps in
protection, it can he not be denied, even on this side
329 of particularly serious crimes in respect of the least
Accordingly, there was no reason, in addition to nor specific weight of an injured legal right to access
access to the criminal standard of the Code of to open to traffic because he thinks in his
Criminal Procedure § 100g, which has been with the assessment, to exclude only as the emergence in fact
constitutional part, attacked to respond also to the largely lawless areas and a broad drain of the

45
Enlightenment. Examples of such point is the extent 335
of the criminal element of the enactment (§ 238 6th As far as the Senate majority eventually
paragraph 1 No. 2 StGB, cyber-stalking "), where extending the notification requirements in case of
verification at a" statement against hers constellation access to traffic postulated and in principle for the
", but also to identify an unknown perpetrator, the first criminal law is not only a so-called open access, but a
Traffic often the only identification approach are. The required "before the query or submission" successful
possibility of a flying start here leads further limited end notification when the protection is not contrary to
because it is not recorded as the e-mail traffic, and the study purpose, leaves these requirements, the
ultimately dependent on the goodwill of the service legislative approach and takes over Sun in the
provider. The same applies to the facts of the threat, discretion of the legislature. The concept of the
but especially in the area of fraud on the Internet, are legislature passed, to regulate all "undercover"
available at the police crime statistics as evidenced actions, which he has calculated explicitly the traffic
by the significant number of cases in question. data collection (Bill BTDrucks 16/5846, p. 2). Also §
Considering finally come, other offenses (§ 202a to 100g Code of Criminal Procedure provides that traffic
202c, spying and interception of data, see also § § data (initially) "without the knowledge of those
269, 303a, 303b of the Criminal Code, forgery of concerned" may be levied. This also has a good
evidentiary documents, data manipulation, computer reason. Because investigations are regularly
sabotage, § 38 para 1 WpHG in connection with § 14 characterized by a considerable momentum and lead
para 1 No. 1 WpHG, so-called insider trading, § 38 to accelerated. Expenses, the verfahrenssichernden
paragraph 2 in conjunction with § 39 Paragraph 1 No. and law-enforcement purposes are not necessarily
1, § 20a para 1 sentence 1 WpHG, Nos 1-3, unlawful due to real time, initially held in check. The legislator
market manipulation, § 86 StGB, the spreading of has therefore taken for the traffic data collection a
propaganda of unconstitutional organizations ). sophisticated system for the notification (see § 101,
Section 1, paragraph 4, sentence 1, No. 5, para 5
333 Code of Criminal Procedure), which requires no prior
While it would seem inconceivable that the legislature notice. In addition, he has to raise with the
one of these events provided for in the Senate takes permission, initially without knowledge of the affected
up the required catalog of serious crimes. He will, traffic, made an apparent typing, which derives from
however, the limits of the fault principle undertook the fact that often hinder the purpose of the
reasonable threat of punishment, which is able to investigation, the Nichtbekanntsein the whereabouts
justify this. Offenses that are not committed of the person concerned or the need to speed up the
professionally or raise any particularly large claims in findings of a pre-alert. This is obviously not
individual cases, may be hardly included in such a inappropriate to the person concerned is reasonable
list, as he envisioned the Senate. Also, the use of and therefore the legislature constitutionally at liberty.
operationally only remaining "non-stock data" is the
explanation, lack barely able to mitigate. There are
big differences between the providers experience. III.
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 336
for such a request, and the decision on the By the Senate were to annul the contested
application are often a long period of claim, as the provisions, although the legal consequence of the
traffic data available for operational reasons before incompatibility statement carried by the majority.
the service is. However, it would have here on the basis of the
constitutional assessment of the majority, drawing on
334 a permanent jurisdiction of the Federal nearby to set
5th Similarly, as regards the access threshold set by a deadline for the legislature for new rules and
the Senate for security purposes. By the Senate for existing regulations in line with the stipulations of the
sufficiently weighty legal rights held to consider the Senate adopted interim measures to temporarily to
traffic as accessible and usable, would have given the explain more applicable. For the Senate grants the
defense is not also a general danger to property of legislature the possibility to provide a traffic data
significant value, their conservation in the public storage requirement for six months and to create
interest must be included. It seems incomprehensible under the conditions stated in the ruling also access
to exempt significant property in this sense, as these systems, which are essentially the provisions of the
are also constitutionally protected (see Article 14 interim measures. The stipulations of the Judgement
paragraph 1 GG). The inclusion of protection and this is different from those in the interim measures
is not then at least inappropriate, if the traffic data primarily only in that higher demands on data security
collection - such as in § 20m BKAG - also provides a and notification obligations are further claimed. This
subsidiarity clause ("... otherwise difficult or hopeless suggests, according to the assessment - the frequent
much would be. "). practice of the Federal Constitutional Court - by a
declaration of invalidity in sight at first and not to

46
consider it mandatory to allow temporarily just to provides or supplement also, in my opinion to such
access data service providers, who are for statutory requirements nor is unfounded, at least for
operational or billing reasons still exist . So then for empirical evidence.
the time being until a new arrangement for the
security and significant deficiencies in the 339
investigation of serious crimes also have to get in and The main load effect for the subject of protection of
purchase made. On the grounds of the interim Article 10 paragraph 1 GG, which starts from the
measures adopted by the Senate and made trade- arrangement of data storage for the citizen is,
offs there is referred. In addition, the service provider therefore, I believe, for even in the first place in the
must suspend their steps for the implementation of late of this huge data hazard potential due to abuse
the challenged legislation and to establish the old by the service providers themselves through
state have to in the case of Community law already unauthorized third parties or by an excessive use of
required new, amended law to create the conditions law enforcement or police authorities. Against this
again at considerable expense. 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
Schluckebier 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,
Dissenting opinion of Judge Eichberger although subject to the Judgement of the Senate
majority to the legislature in this regard made
the ruling of the First Senate of 2 March 2010 provisions in my estimation over long distances to
small pieces, and not sufficiently take into account the
- 1 BvR 256/08 - discretion, conferred by the Constitution to the
- 1 BvR 263/08 - legislature in this context.
- 1 BvR 586/08 –
340
2nd Unlike the Senate majority and in accordance
337 with the judge Schluckebier I am of the view that the
I agree with the decision of the Senate majority in § § 113a, 113b TKG underlying legislative concept of
parts of the sentencing outcome, and in essential a tiered legislative responsibility for storage and
elements reasons not to. I agree in principle the retrieval arrangement in principle with the Constitution
criticism of the judge Schluckebier thereto, whose is consistent. Under this concept based TKG § 113b
opinion I am in and the ground plug in the great no independent, on the order of the data in § 113a
majority. I can therefore concentrate in the following TKG beyond interference with Article 10 paragraph 1
to a brief summary of the considerations bearing on GG. The rule contains rather offered by the
my position: constitutionally intended use for the storage of traffic
data. Only one sentence in § 113b the
338 Telecommunications Act provided for other statutory
1st Also, in my opinion, the legal arrangement of the authorization for retrieval of traffic leads to a renewed,
storage of telecommunications traffic data is on the importance of data storage beyond previously
comprehensive and objective view of their staff, performed surgery in Article 10 paragraph 1 GG. In
external, and their Anlasslosigkeit the considerable this way, the federal legislator leaves with § 113b
duration of the required data reproach a weighty TKG in charge of the relevant matter; legislature of
intervention in Article 10 paragraph 1 GG. Since, the Federation or the Länder to him to decide by
however, limits the obligation to store the traffic data virtue of his constitutional and democratic legitimacy
and does not control the content of of rightful authority, whether and to what extent the
telecommunications operations, and because it is purpose of law enforcement, security or should
decentralized in the private service, associated with access to the needs of the intelligence on the
the storage of the intervention was not the overriding telecommunications traffic. Here, the respective
weight to the Senate majority attributes to him in legislature of course true to themselves the
general. The fear, the Senate majority by the constitutional limits of a relative access to the traffic.
intimidation effect on the communication behavior of
the population, I think, given the legislative 341
conception of the data, which excludes a free access A constitutionally impermissible arrangement is on a
of public authorities at the decentralized among data storage for indefinite purposes not herein. The
private service providers store traffic and strict federal legislature has designated in § 113b together
substantive and procedural hurdles - especially a with the Telecommunications Act made in § 113a
substantial judges subject - for a data retrieval TKG obligation of service for data storage, the

47
purposes for which the stored data may be used. By the access to content similar surgery weight, despite
the federal legislature, the arrangement of the data the fact that they will be answered from the full-scale
taken on responsibility for the fact to the detriment of data collection. By the Senate majority sees based in
citizens established risk potential requires, however, any data retrieval a very serious infringement of
also in my opinion - so far I agree with the position of Article 10 paragraph 1 GG, regardless of its real level
Senate majority in the starting point to - in addition to in the particular case and, therefore, the legislature
the basic definition of the purpose of establishing at generally constitutionally very high activation
least a minimum threshold for intervention, such as threshold thinks committed, she is, even if They deny
they described in § 113b sentence 1 No. 1 this, I believe also in contradiction to a rating that the
Telecommunications Act in connection with the same same data by the Senate without objection, may be
time adopted a Code of Criminal Procedure § 100g interrogated by the authorities, if they are not stored
par for the prosecution and with the concept of according to § 113a TKG, but from the service for
"significant dangers" in § 113b sentence 1 No. 2 TKG operational reasons.
for security, but not comparable to § 113b sentence 1
No. 3 TKG for fulfilling the tasks of the intelligence is 344
provided. This would require the appropriate Proceeding from this I can not agree, despite the
supplement. A detailed and final determination of different weighting in the base by the Senate majority
uses, as the Senate majority required by the Federal to scale formulated requirements for a permissible
legislature at the same time with the arrangement of use of traffic data for reasons of security and
data storage, however, I think of constitutionally intelligence purposes (CV 2 b and c) still, but not the
unnecessary. requirements for the use of data to track crime (CV
and C VI 2 a 3 a aa). In that regard, I consider that
342 the legislature in § 100g Code of Criminal Procedure
3rd Finally, and above all, I can weigh the outcome of created differentiated approach to data collection and
the Senate majority does not agree, as far as the use law enforcement to be constitutional. It is the
Code of Criminal Procedure provided for in § 100g § responsibility of each individual case to rule on the
113a by use of the stored data for purposes of the Act admissibility of a data query called to judge the
prosecution deems unconstitutional. This is due first legitimate interests of those affected by Article 10
is that the Senate majority, even in the base caused paragraph 1 GG, taking into account the weight of the
by the arrangement of data storage procedure in applied techniques to adequately take into account,
Article 10 paragraph 1 GG, in my opinion too much as is true for the crimes committed by means of
weight and the legitimate concerns of the general telecommunications offenses in § 100g para 1
public as well as individual citizens in an effective sentence 2 Code of Criminal Procedure by law, will
effective law enforcement and security on the other also formally required.
hand too little importance attaches. It also respects
the legislature in the evaluation of the competing 345
goods and protect the rightful scope of the scheme to 4th Even from the standpoint of the majority of the
low. Here I refer to the split of my comments in the Senate, in my opinion would be only the
dissenting opinion of Judge Schluckebier. unconstitutionality of the challenged provisions, and
determine in accordance with the interim measures
343 adopted in this case at least the interim data
The proportionality test, the Senate majority also collection and storage order pending the
suffers from the fact that they always in their establishment of a constitutional revision have been.
consideration of the widest possible engagement of a With the seamless annulment of the provisions and
comprehensive, ultimately proceeds to a movement the obligation to delete the findings on the basis of
or social profile of the concerned citizens aimed data interim measures traffic increases, the Senate
retrieval. Herein may lie in the fact a procedure that is majority disadvantage to the prosecution, but above
equivalent in severity to that of a weighty its access to all the risk is not excludable hazards important
the telecommunications content of the citizen. This safeguard goods in department, although a
view does, however, out of consideration that a large consultation which the interests in the arrangements
number of data queries individual events, short meet the requirements formulated in the constitutional
periods and telecommunications relations only one or principle holds for and expect an appropriate statutory
a few individuals (such as the telecommunications scheme. Such a solution can not support me.
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 Eichberger

48