Another legal slap for the former grand coalition: The Federal Administrative Court (BVerwG) has now also decided that the obligation for service providers to store connection and location data for months, regardless of suspicion, which was inserted by Black and Red into the Telecommunications Act (TKG) is “completely incompatible”. with the European Electronic Communications Data Protection Directive. The provision that has already been suspended can therefore still not be applied. Deutsche Telekom and the Munich provider Spacenet sued and were proven right in lower courts five years ago.
The federal government wanted to maintain the requirement despite multiple rulings by the European Court of Justice (ECJ) against data retention without reason and appealed to the Federal Administrative Court – represented by the Federal Network Agency. The Leipzig judges initially suspended the proceedings and asked the ECJ specifically about the relevant German paragraphs in the TKG. This declared the regulations to be incompatible with the fundamental rights guaranteed in the EU. Taking into account the decision of the Luxembourg judges, the BVerwG has now come to the conclusion that the TKG clauses “prescribe the retention of a large part of the traffic and location data without any reason, across the board and undifferentiated in terms of personnel, time and geography”.
In the judgments of August 14th published on Thursday (ref.: BVerwG 6 C 6.22 and 6 C 7.22), the highest German administrative court emphasized that the provisions lacked objective criteria “that establish a connection between the data to be stored and the pursued “Create target”. Since the retention and access to the collected information represent different interventions in the fundamental rights concerned, which require separate justification, the legally prescribed limits on the purposes of use are “not suitable from the outset”, and the requirement for clear and precise rules for the logging of the data to fulfill.
To the extent that the information was intended to be used to identify the source and addressee of a communication, the TKG regulations also lack the strict limitation of data retention “to the purpose of protecting national security” required by the ECJ, according to the resolutions. According to the Luxembourg judges, the general and indiscriminate storage of IP addresses could be permissible for “the fight against serious crime and the prevention of serious threats to public security”. However, there is no such restriction in the TKG. On Thursday, the ECJ ruled in response to a lawsuit from a Lithuanian public prosecutor that retained data collected to combat serious crime may not be used for investigations into corruption in the public sector (ref.: C-162/22).
Justice Minister wants to completely overturn VDS
The Federal Administrative Court also found that the relevant requirements for determining the storage purposes in the context of inventory data information went well beyond the EU legal framework. This applies not only to the previous legal situation, but also to the new compromise that the Bundestag and Bundesrat agreed on in 2021 after a long tug of war and which is supposed to take into account the case law of the Federal Constitutional Court. With the agreement, the Federal Criminal Police Office (BKA) can query not only names and addresses but also passwords from telemedia providers such as WhatsApp, eBay, Facebook, Google with Gmail and YouTube as well as Tinder. Here too, the legislature must now make improvements again.
“The federal government should now finally seize the opportunity to set a political course and initiate the abolition of data retention,” said Oliver Süme, CEO of the eco Association of the Internet Industry, commenting on the judgments. Federal Justice Minister Marco Buschmann (FDP) explained in this sense: “The current decisions are a clear mandate for us to quickly remove data retention from the law – and to further strengthen digital civil rights in our country.” In a constitutional state, not all citizens should be placed under general suspicion. The Liberals have already presented an alternative proposal for freezing traffic data in suspected cases (quick freeze). Interior Minister Nancy Faeser (SPD), on the other hand, is fighting for IP addresses and port numbers to be stored without cause.
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