BVerfG__1BvR256_08__of2March2010_ENG

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http://www.bundesverfassungsgericht.de/entscheidungen/rs20100302_1bvr025608.html?suchbegriff=vorratsdatenspeicherung OR http://www.bverfg.de/entscheidungen/rs20100302_1bvr025608.html

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 serviceproviders, 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 seincompatible 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 ofthe storage associated with the fundamental interference due consideration. Required are sufficientlydemanding 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 1No 7 GG. Conversely, the case is determined to create the demand schemes itself and for the design of thetransparency and legal protections under the respective expertise.

4. Regarding data security regulations are needed, providing a very high safety standard normenklar andbinding. It is certainly the reason for the law to ensure that this is geared to the development of professionaldiscussions, new discoveries and insights continuously absorbs and is not subject to a free assessment ofgeneral economic factors.

5. The retrieval and the direct use of the data are only proportionate, if they serve important functions of theoutstanding legal rights protection. In the field of law enforcement, this requires a reasonable suspicion bycertain facts of a serious crime. For the security and the fulfillment of the tasks of the intelligence they maybe 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 providerabout the owners of Internet Protocol addresses is also independent of limiting crime or catalogs of legalprotection for law enforcement, security and the performance of intelligence tasks allowed. For theprosecution of offenses, such information is allowed only by special weight in law expressly designatedcases.

http://www.bundesverfassungsgericht.de/entscheidungen/rs20100302_1bvr025608.html?suchbegriff=vorratsdatenspeicherung



http://www.bverfg.de/entscheidungen/rs20100302_1bvr025608.html




http://www.bundesverfassungsgericht.de/en/press/bvg10-011en.html

http://www.bundesverfassungsgericht.de/en/press/bvg10-011en.html







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Federal Const i t ut ional Cour t

- 1 BvR 256/08 -- 1 BvR 263/08 -- 1 BvR 586/08 -

Delivered on 2 March 2010Kehrwecker official inspector of the office as aministerial officer

On behal f of the people

In proceedings

about

the const i tu t i ona l

I.

1st of Prof. Dr. G ...2nd of Dr. G ...3rd of Mr. K ...4th J ... GmbH,represented by its Managing Director,5th U of the Lord ...6th of Mr. R ...7th of Mr. Z ...8th of Dr. B ...

- Represented by Meinhard Starostik,Schill Strasse 9, 10785 Berlin -

against § § 113a, 113b of the TelecommunicationsAct as amended by the Act to Reform theTelecommunications and other undercoverinvestigative measures and the implementation ofDirective 2006/24/EC of 21 December 2007 (BGBl Ip. 3198)

- 1 BvR 256/08 -

II

1st by Dr. Dr. h.c. H ...2nd by Dr. S ...3rd Women's L ...4th of Mr. B ...5th Women's P ...6th of Mr. K ...7th by Dr. L ...8th by Dr. W ...9th of Prof. Dr. S ...10th Women's S ...11th of Mr. F ...,

12th of Mr. S ...13th the Lord V ...14th of Mr. W ...

- Represented by Dr. Dr. h.c. Burkhard Hirsch,Rhein Allee 120, 40545 Dusseldorf -

against the law to restructure the telecommunicationsand other undercoverInvestigative measures and the implementation of

Directive 2006/24/EC of 21 December 2007 (FederalLaw Gazette I p. 3198)

- 1 BvR 263/08 -

III.

1st Women's A ...,2nd Women B ...3rd of Mr. B ...4th Women B ...5th Women B ...6th of Mr. B ...7th of Mr. D ...8th Women's Dr. D ...9th Women Dr. E ...10th of Mr. F ...,11th Lord of the G ...12th Women's G ...13th Women H ...14th Women H ...15th Women H ...16th of Mr. H ...,17th of Mr. H ...,18th of Mr. W ...

19th of Mr. W ...20th of Mr. T ...21st of Dr. T ...22nd of Mr. S ...23rd by Dr. S ...24th Women's S ...25th Women's S ...26th Women's S ...27th Women's S ...28th Women's P ...29th N of the Lord ...30th N of the Lord ...31st Women's M ...

32nd of Mr. M ...33rd Women's M ...34th Women's L ...35th Women's K ...36th of Mr. K ...37th of Mr. K ...38th Women's K ...39th Women's K ...40th by Dr. H ...41st Women H ...42nd Women H ...



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43rd Women H ...

- Represented by Prof. Dr. Jens-Peter Schneider,Lürmannstraße 10, 49076 Osnabrück -

against the regulations on data retention in the lawestablishing new rules onTelecommunications and other undercoverinvestigative measures and the implementation ofDirective 2006/24/EC of 21 December 2007 (BGBl I

p. 3198)- 1 BvR 586/08 -

, the Federal Constitutional Court - First Senate -composed of Judges and magistrates

President paper,Hohmann Dennhardt,Bryde,Gaier,Eichberger,Schluckebier,Kirchhof,Masing

to the hearing of 15 December 2009 by

Verd ic t

hereby:

1. § § 113a and 113b of the

Telecommunications Act, as amended byArticle 2, paragraph 6 of the Law on therevision of telecommunications and otherundercover investigative measures andthe implementation of Directive2006/24/EC of 21 December 2007 (FederalLaw Gazette I page 3198) they infringeArticle 10, paragraph 1 of the Constitutionand void.

2. § 100g, paragraph 1, sentence 1 of theCode of Criminal Procedure, as amendedby Article 1, paragraph 11 of the Act torestructure the telecommunications andother undercover investigative measuresand the implementation of Directive2006/24/EC of 21 December 2007 (FederalLaw Gazette I page 3198 violation), whensuch traffic in accordance with § 113a ofthe Telecommunications Act shall besubject to Article 10, paragraph 1 of theBasic Law and is to that extent void.

3. The interim result of the arrangement of11 March 2008 in a procedure BvR 256/08(Federal Law Gazette Part I page 659),

repeated and extended by order of 28October 2008 (Federal Law Gazette I page2239), recently reiterated by order of 15thOctober 2009 (Federal Law Gazette I page3704), the providers of publicly availabletelecommunications services as part ofofficial requests for information collected,but for the time being not in accordancewith § 113b sentence 1 sentence 1 of theTelecommunications Act to the requesting

authorities sent but savedtelecommunications traffic to delete itimmediately. They may not be transmittedto the requesting agencies.

4. The Federal Republic of Germany has toreport to the complainants their necessaryexpenses from the constitutional process.

Reasons:

A.

1 Subject matter of the constitutional provisions arethe Telecommunications Act (hereinafter the Act) andthe Criminal Procedure Code ("the Code of CriminalProcedure) that regulate a precautionary retention oftelecommunications traffic data from the provider ofpublicly available telecommunications services for sixmonths and the use of this data.

I .

2The challenged provisions have been by the law onthe revision of telecommunications and otherundercover investigative measures and theimplementation of Directive 2006/24/EC of 21December 2007 (BGBl I S. 3198, the Law on therevision of telecommunications) is added or changed,

and following its article 16, paragraph 1 on 1 January2008 entered into force. They are supporting theimplementation of Directive 2006/24/EC of theEuropean Parliament and the Council of 15 March2006 on the retention of data in the provision ofpublicly available electronic communications servicesproduced and processed, and amending Directive2002/58/EC (OJ L 105 of 13 April 2006, p. 54,hereinafter : Directive 2006/24/EC).

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1st All constitutional complaints directly against § §113a and 113b Telecommunications Act, which, byArticle 2 of Law No. 6 on the reform oftelecommunications has been inserted into theTelecommunications Act. The constitutional processin a BvR 263/08 and 586/08 BvR a contact alsodirectly against § 100g Code of Criminal Procedure,as amended by Article 11 of Law No. 1 for newregulation of telecommunications, as far as thecollection of in accordance with § 113a TKG stored

data allows.4a) § 113a TKG aims to have regard to all publiclyavailable telecommunications traffic data that provideinformation about participating in atelecommunication connection ports, over time, hastaken place at the telecommunications, and on theplaces that communicates from which is to save forsix months and to hold for the state to taskperformance available. The law takes so long beenraised claims of the Federal Council on (seeBundestag document 14/9801, p. 8; BRDrucks<Beschluss> 755/03, p. 33 ff; BRDrucks 406/1/04;BRDrucks 406/04 <Decision >; BRDrucks<Beschluss> 723/05, p. 1), where in 2006, followedwith reference to the relevant actions on theEuropean level, and the German Bundestag. Hecalled on the Federal Government to approve thedraft Directive 2006/24/EC, and soon submit a draftImplementation Act (see Bundestag 16/545, p. 4, 16 / 690, p. 2; BTPlenarprotokoll 16/19, p. 1430). Whichthe federal government came with the draft law torestructure the telecommunications, according to (seeBundestag document 16/5846).

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§ 113a para 1 sentence 1 of the Act requiresproviders of publicly available telecommunicationsservices, which in § 113a para 2-5 TKG individuallylisted telecommunications traffic data to phones,Internet and mobile phone calls, to send SMS, MMSor similar message, to E-mail connections to theInternet and store for a period of six months. Personproviding such services, without having to generatetraffic is to ensure under § 113a para 1 sentence 2 ofthe Act, that the data is stored, and to notify theFederal Network Agency, who collects the data.Anyone providing telecommunications services, andchanged according to § 113a TKG to memorized data

is also required, under § 113a para 6 TKG for storingthe original and the changed data. After expiration ofthe retention period, the data must be deletedaccording to § 113a para 11 of the Act within amonth. The content of the communication and datareferring to § 113a para websites must not be storedTKG 8. For the data points § 113a para 10 of theTelecommunications Act in the telecommunicationssector due diligence and required that the access tothis data only specially authorized personnel arereserved.

6In addition to storage in accordance with § 113a TKGis for providers of telecommunications servicespursuant to § 96 TKG also given the option to savetelecommunications traffic and use, to the extentnecessary to the aims described above is. After theend of a telecommunications link such data must beused according to § 96 paragraph 2 sentence 1 of theAct, in essence, where they are needed to determine

the remuneration and settlement of accounts with theparticipants (§ 97 para 1 sentence 1 of the Act), togenerate an itemized bill (§ 99 para 1 sentence 1 ofthe Act), as required for the recognition, narrow oreliminate disruptions or failures intelecommunications systems required (§ 100 para 1of the TKG), and to provide information about theowners of connections of which threatening orharassing phone calls went out (§ 101 para 1sentence 1 TKG).

7TKG § 113a provides:

8§ 113a

9Storage requirements for data

10 (A) a person providing publicly availabletelecommunications services to end users,is required to save him from his service inthe use of traffic data generated orprocessed in accordance with paragraphs2-5 six months in the country or in another

Member State of the European Union.Anyone who publicly availabletelecommunications services to end usersprovides, without having to generate trafficand to process, must ensure that the datais stored according to Clause 1, and theFederal Network Agency on the request ofwho collects the data.

11(2) The provider of publicly availabletelephone store:

121st the phone number or other identifier ofthe calling and called party and in the caseof conversion or forwarding any otherparticipating port,

132nd the beginning and the end of theconnection by date and time, indicating theunderlying zone,



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143rd in cases where telephone service may,under the different services are used,information about the used service,

154th in the case of mobile telephony further:

16a) The international mobile subscriber

identifier to the calling and called partiesaccess,

17b) the international identification of thecalling and the called terminal,

18c) the name of by the calling and calledparties connected with the beginning of thecompound used radio cells,

19d) in the case of anonymous prepaidservices, the first activation of the serviceby date, time and name of the cell

205th in the case of Internet telephony, theInternet protocol address of the calling andcalled party.

21Sentence 1 shall apply when forwarding atext message, multimedia message orsimilar, taking into account instead of theinformation in sentence 1 No. 2, the timing

of the dispatch and receipt are save themessage.

22(3) The provider of services of e-mail store:

231st when sending a message to the ID ofthe electronic mail and the Internet Protocoladdress of the sender and the ID of theelectronic mailbox of each recipient of themessage,

242nd upon receipt of a message in anelectronic mailbox ID of the electronicmailbox of the sender and the recipient ofthe message and the Internet protocoladdress of the sending telecommunicationssystem,

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3rd accessing the electronic mailbox whoseID and the Internet Protocol address of theperson using it,

264th the dates mentioned in paragraphs 1-3of the service usage by date and time,indicating the underlying zone.

2 (4) The provider of Internet access

services save:281st to the subscriber for an InternetProtocol address assigned to the Internet,

292nd a unique identifier of the port throughwhich the shipment of the Internet,

303rd the beginning and the end of theInternet under the Internet Protocol addressassigned by date and time, indicating theunderlying zone.

31(5) If the provider of telephone serviceslisted in that provision for the traffic referredto in § 96 para 2 purposes even save orrecord when the call is not answered orbecause of an interference of networkmanagement is unsuccessful, the trafficdata are also in accordance with thisprovision store.

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(6) a person providing telecommunicationsservices, taking account of the changesunder this provision, the records is to storethe original and the new indication and thetiming of the required transfer of thisinformation by date and time, indicating theunderlying zone.

33(7) Any person who operates a mobilenetwork for the public is bound to thestored in accordance with this provisionTitles of radio cells also hold data, giving

rise to the geographical locations of therespective cell-sufficient radio antennasand their main beam directions.

34(8) The content of communication and datarequested pursuant to this provision,websites must not be saved.

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(9) The storage of the data referred to inparagraphs 1-7 shall be made so thatrequests for information of the authorizedbodies can be answered immediately.

36(10) is obligated under this provisionconcerning the quality and the protection ofstored traffic data in the field oftelecommunications due diligence to be

observed. In the context of which he hasachieved through technical andorganizational measures that access to thestored data only possible purpose of itspecially authorized personnel.

37(11) The party liable under that provision,the stored solely on the basis of thisprovision is to delete data within one monthafter the expiry of the period referred to inparagraph 1, or to ensure the erasure.

38b) § 113b Telecommunications Act regulates thepurposes for which authorized in accordance with §113a TKG stored data is used. He distinguishesbetween the transmission to the authorities to allowsuch a use to perform their functions, and use by thetelecommunications providers themselves to supplyinformation pursuant to § 113 TKG, in particular theowners of Internet connections.

39aa) § 113b sentence 1 sentence 1 of the TKGprovides for the purposes for which thetelecommunications companies are allowed to

transmit the data to the authorities. The conditionsunder which these may in turn use the data to beregulated by federal or state law provision in a lawspecialist. § 113b sentence 1 sentence 1 of the TKGprovides that the person obliged to store the data thatis stored solely on the basis of the storage obligationin accordance with § 113a TKG, exclusively for theprosecution of criminal offenses (No. 1), to preventserious risks to public safety ( may pass No. 2) and tocarry intelligence tasks (3) to the relevant parties.

40The transmission of data to the relevant body may

take place at its request, pursuant to § 113b sentence1 sentence 1 TKG only to the extent provided in therelevant statutory provisions of the trade law byreference to § 113a TKG explicitly and arranged in aparticular case.

41The fachrechtliche enabling provision for the use ofthe stored data according to § 113a of the Act is theprosecution of the complainants in the proceedings aBvR 263/08 and 586/08 attacked a BvR § 100g Code

of Criminal Procedure. For the security and theperformance of duties of the intelligence now refer §20m of the Federal Criminal Law (hereinafter: BKAG)in the wording of the law to respond to threats ofinternational terrorism by the Federal Office of 25December 2008 (BGBl I p. 3083) and variousprovisions in § 113a Land in the Act and enable theofficial use of the stored data under this provision.

42

Lawfully stored in telecommunications traffic,however, could also before the entry into force of §113a TKG already for law enforcement or security forthe performance of intelligence tasks are used. Suchwas § 100g para 1 Code of Criminal Procedure, asamended by Article 1 of the Act to amend the Code ofCriminal Procedure of 20 December 2001 (BGBl I p.3879, hereinafter § 100g StPO aF) is suspected of acrime of considerable importance or a perpetrated bya terminal equipment of telecommunications crime onthe basis of decision of the judge an obligation ofservice providers to supply information ontelecommunication connection before. Also approvedas Article 34b para 2 no 1 of the Act on the functionsand powers of the Bavarian State Police (Police Tasklaw, 'the BayPAG) as amended by the Act amendingthe Police Act and the Parliamentary Task controlpanel-law of 24 December 2005 (GVBl p. 641) or §8a para 1 sentence 1 No. 4 of the Law onCooperation of the Federal and State Governments inmatters of the Constitution and the FederalConstitution (federal constitution protection law, 'theBVerfSchG) as amended of the law to complementthe counter-terrorism law of 5 January 2007 (BGBl I,p. 2) to security or performance of information aboutexisting tasks Constitution telecommunicationsconnection data obtained.

43bb) § 113b sentence 1 sentence 2 TKG, the use ofthe stored data according to § 113a TKG closed forother than the sentence a phrase in § 113b 1 TKGthese purposes, although in principle. It can howeverbe an exception in the way that they may be used byservice providers and to supply information pursuantto § 113 TKG.

44§ 113 para 1 Telecommunications Act allowsauthorities to call up so-called customer and inventory

data in accordance with § § 95 and 111 of the Act, inparticular of telephone numbers, access codes andthe names and addresses of subscribers. § 113ballows a sentence of clause 2 TKG it to the serviceproviders, information about the owners of so-called"dynamic" Internet protocol addresses (the IPaddresses) grant. IP addresses are not under thecurrent state of development of a port normallyassociated with fixed as so-called "static" IPaddresses, but assigned to the Internet user only forthe duration of each access to the Internet as a



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dynamic IP addresses. About the owner of the portthat was used from which a particular dynamic IPaddress at a particular time is, therefore, onlyinformation to be given if the traffic can be analyzed,which give information about which port the relevantIP address to material time, was assigned. Thisallows § 113b set a sentence for the two TKG TKGdata stored in accordance with § 113a.

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According to the predominant view allowed traffic tosupply information about the holder of dynamic IPaddresses to § 113 paragraph 1 TKG be used evenbefore the entry into force of § § 113a and 113b TKG(see, for instance LG Stuttgart, decision of January 4,2005 - 13 Qs 89/04 - NJW 2005, p. 614 <614 f.>; LGHamburg, decision of 23 June 2005-1 Qs 43/05 -,MMR 2005, p. 711 <712 f.>; Sankol, MMR 2006, p.361 <365>; aA LG Bonn, Decision of 21 May 2004-31Qs 65/04 - DuD 2004, p. 628 <628 f.>; OLGKarlsruhe, Judgement of December 4, 2008 - 86/07 4U -, MMR 2009, p. 412 <413 f.>; bear, Handbook onComputer Evidence, 2007, p. 148, para. 212; Bock,in: Geppert / Piepenbrock / contactor / Schuster, Beck'scher comment to TKG, 3rd edition 2006, § 113 para.23 f.). we could use it only on in accordance with § 96TKG stored traffic data. The possibility of anidentification of the holder of a dynamic IP addressvia an information pursuant to § 113 paragraph 1TKG was therefore dependent on whether such datawere stored on the date the request for informationyet.

46Important is the identification of the holder of IPaddresses as the copyright notice. If managementand rights holders to record the IP addresses where

copyright violations are committed in the Internet, thelaw enforcement authorities through informationrequests under § 113 paragraph 1 TKG determine therespective subscriber to against the can do the rightsholders for access to the criminal files then civil law.While conceding § 101 paragraph 2 sentence 1 No. 3of the Copyright Act ("the Copyright Act) as amendedby Article 6 of Law No. 10 for improving theenforcement of intellectual property rights of 7 July2008 (BGBl I S. 1191) under their copyright injurednow, under certain conditions, a civil right toinformation to the telecommunications servicesproviders one. This may provide this information to

the Copyright Act § 101 paragraph 9 on the basis of acourt order under use of telecommunications trafficdata. However, this is a return to the stored dataaccording to § 113a TKG excluded (see OLGFrankfurt am Main, Decision of 12 May 2009 - 11 W21/09 -, MMR 2009, p. 542 <544 with furtherreferences; Listen, NJW 2008, p. 3099 <3101>;Baker, in: Rensen / Brink, lines of the FederalConstitutional Court, 2009, p. 99 <111f>, footnote49).

47Information under § 113 para 1 sentence 1 of theTKG are given to the extent necessary for theprosecution of crimes or misdemeanors, to respondto threats to public security or public order or for theperformance of intelligence tasks.

48cc) § 113b Telecommunications Act provides:

49§ 113b

50Using the stored data according to § 113a

51The party liable under § 113a must solelyon the basis of the storage obligation inaccordance with § 113a stored data

521st to prosecute crimes,

532nd to repel serious threats to public safetyor

543rd to fulfill the statutory duties of theconstitutional authorities of the Federal andState Governments, the FederalIntelligence Service and the MilitaryIntelligence

55submit to competent authorities at their

request, to the extent provided in therespective statutory provisions withreference to § 113a and the transmission isarranged in a particular case, for anypurpose other than an exchange ofinformation under § 113, it may not use thedata. § 113 para 1 sentence 4 shall applyaccordingly.

56The § 113b of the Act in relation taken control of theTelecommunications Act § 113 provides in relevantpart:

57§ 113

58Information Procedure Manual

59(A) a person providing telecommunicationsservices or business-it participates, has ineach case to the competent authorities



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shall promptly at its request information onthe charges under § § 95 and 111 data, asnecessary for the prosecution of crimes ormisdemeanors, to respond to threats topublic safety or order or to fulfill thestatutory duties of the constitutionalauthorities of the Federal and StateGovernments, the Federal IntelligenceService or the Military is required.Information on data by which to access

devices or in this or in the network set upstorage facilities will be protected,particularly PIN or PUK, has a sentence tothe obligor pursuant to a request forinformation under § 161 para 1 sentence 1,§ 163 para 1 Code of Criminal Procedure,the data collection requirements of thepolice laws of the Federal or StateGovernments to prevent threats to publicsafety or order, § 8 paragraph 1 of thefederal constitution protection law, therelevant provisions of the country'sConstitution Act, § 2 paragraph 1 of theFederal Intelligence Service Act or § 4 Absmay be given. 1 of the MAD-law, to otherpublic or private bodies such data can notbe transmitted. An access to data that aresubject to the secrecy oftelecommunications is allowed only underthe conditions of the relevant statutoryprovisions therefor. Providing informationabout the debtor has to maintain itscustomers and third parties confidential.

60(2) ...

61c) § 100g para 1 sentence 1 Code of CriminalProcedure governs the collection oftelecommunications traffic data for law enforcementpurposes. Law enforcement authorities may then first,as stipulated in § 100g StPO aF access to traffic,which have saved the telecommunications companieson the basis of § 96 of the Act. In addition, Code ofCriminal Procedure § 100g now permits the collectionof the Telecommunications Act § 113a to the datastored as a precaution. Against this target of theconstitutional process in a BvR 263/08 and 586/08BvR 1.

62Specifically, § 100g allowed para 1 sentence 1 §113a Code of Criminal Procedure, referring to the Actthe law enforcement authorities without theknowledge of the person concerned to bring traffic tothe extent necessary for the investigation of the factsor the determination of the whereabouts of thesuspect is. This is true only when certain facts justifythe suspicion that someone as perpetrators orparticipants in a crime described in the case of

considerable importance, especially one in § 100apara 2 Code of Criminal Procedure offense,committed or has attempted to commit a crimeprepared or that someone has as perpetrators orparticipants of a crime committed by means oftelecommunications.

63The data collection may under § 100g para 2sentence 1 in conjunction with § 100b paragraph 1

sentence 1 and 2, Code of Criminal Procedure exceptin the case of imminent danger only be ordered bythe judge. The arrangement may be directed inaccordance with § 100g para 2 sentence 1 inconjunction with § 100a para 3 Code of CriminalProcedure only against the defendant, or againstpersons who are deemed required by certain facts isthat they are intended for the accused arising from itor receive messages or pass, or that the suspectused her connection.

64For crimes committed by means oftelecommunications traffic data collection accordingto § 100g paragraph 1, sentence 3 Code of CriminalProcedure only if the investigation of the facts or thedetermination of the whereabouts of the suspect byother means would be futile and the collection of datain proportion to the importance of the matter stands.This limitation was the legislature on the grounds ofproportionality to be necessary because the trafficdata collection was donated by the storagerequirement of § 113a TKG related expansion of thedata volume to total intensity of intervention (seeBundestag document 16/5846, p. 52).

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Of the measures pursuant to § 100g para 1 sentence1 of the Code of Criminal Procedure concerned inaccordance with § 101 paragraph 4 sentence 1 Codeof Criminal Procedure must be informed. Their judicialreview, he may apply within two weeks after thenotification (§ 101 paragraph 7 sentence 2 Code ofCriminal Procedure). In certain cases, a notificationcan be omitted (§ 101 para 4 Code of CriminalProcedure), in other cases they may be postponed (§101 para 5 Code of Criminal Procedure). A long-termdeferral under § 101 paragraph 5 Code of CriminalProcedure requires different from the waiver of noticepursuant to § 101 paragraph 4 of the Code of

Criminal Procedure by a court.66§ 100g Code of Criminal Procedure provides:

67§ 100g

68(1) certain facts justifying the suspicion thatsomeone as perpetrators or participants



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691st has a crime in the case of considerableimportance, especially one in § 100a para 2shall offense committed, commit, in caseswhere the attempt is punishable, hasattempted or prepared by an act or

702nd an offense committed by means of

telecommunications,71Sun may be applicable) without knowledgeof the affected traffic (§ 96 para 1, § 113aof the Telecommunications Act to theextent necessary for the investigation of thefacts or the determination of thewhereabouts of the suspect is. In the caseof sentence 1, No. 2, the measure is onlypermitted if the investigation of the facts orthe determination of the whereabouts of thesuspect in any other way would be futileand the collection of data in proportion tothe significance of the matter is. Thecollection of location data in real time isonly in the case of sentence 1, no oneallowed.

72(2) § 100a para 3 and § 100b para 1-4sentence 1 shall apply accordingly.Notwithstanding § 100b para 2 sentence 2No. 2 in the case is enough of a crime ofconsiderable importance, a spatially andtemporally sufficiently definite identificationof telecommunications, if the investigation

of the facts or the determination of thewhereabouts of the accused would bedifficult otherwise useless or substantially .

73(3) If not, the collection of traffic intelecommunications services provider, it isdetermined after the completion of thecommunication to the general regulations.

74(4) On measures referred to in paragraph 1shall be prepared according to § 100b para

5 of each year a table specified in the are:751st the number of procedures in whichmeasures referred to in paragraph 1 havebeen carried out;

762nd the number of arrangements ofmeasures taken under paragraph 1,

distinguishing between initial and extensionorders;

773rd each underlying cause offense,distinguished by paragraph 1 sentence 1No. 1 and 2;

784th the number of past months, were

queried for the traffic data under paragraph1, calculated from the date of thearrangement;

795th the number of measures to beunsuccessful because the requested datawere not available in whole or in part.

802nd Directive 2006/24/EC of the European Parliamentand Council, the implementation of the challengedregulations as they relate to law enforcement, serve,was adopted by the Council on the basis of Article 95voting against Ireland and Slovakia (see Councildocument 6598/06 ADD 1 of 27 February 2006, p. 4),after the European Parliament one submitted byFrance, Ireland, Sweden and the UK draft on Article31 paragraph 1 letter c, and Article 34 paragraph 2,point rejected b TEU - in the entry into force of theTreaty of Lisbon, as amended (hereinafter: TEU aF) -supported the Framework Decision on the retention oftelecommunications data (see Council document8958/04 of 28 April 2004) had (see parliamentarydocument P 6 TA [2005] 0348).

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a) The Directive builds on the fact thattelecommunications traffic data are a valuable tool inthe prosecution of criminal offenses, particularly in theareas of organized crime and terrorism (which points70-10 of Directive 2006/24/EC) and that someMember States rules on have adopted the retentionof such data, which differed greatly from each other(see recital 5 of Directive 2006/24/EC). The factestablished legal and technical differences affect theinternal market for electronic telecommunications,because providers of telecommunications serviceswith different requirements for the data to be storedand the storage time were facing (see Recital 6 of

Directive 2006/24/EC).82b) The validity of Directive 2006/24/EC is both interms of their compatibility with Communityfundamental rights (see Klesczewski, in: Festschriftfor Gerhard Fezer 70th birthday, 2008, p. 19 <24and>; Klug / Mature, RDV 2008, p. 89 <91 et seq;Rusteberg, VBlBW 2007, p. 171 <176>; Westphal,EuZW 2006, p. 555 <558 f.>; Zoeller, GA, 2007, p.393 <410 ff >; Advocate General Kokott, Advocate,



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18 July 2007 - Case C-275/06 - ECR 2008, I-271<276>, para. 82 - Promusicae -) and in relation to theunused basis of competence European Communitycalled into question (see grid / Schnabel, MMR 2007,p. 411 <412 f.>; Jenny, CR 2008, p. 282 <285>;Klesczewski, in: Festschrift for Gerhard Fezer 70thbirthday, 2008 , p. 19 <22 et seq; Klug / Mature, RDV2008, p. 89 <91>; Leutheusser-Schnarrenberger,ZRP 2007, p. 9 <11 et seq; Rusteberg, VBlBW 2007,p. 171 <173 f.>; Westphal, EuZW 2006, p. 555 <557

f.>; Zoeller, GA, 2007, p. 393 <407 et seq).83With Judgement of 10 February 2009, the Courtdismissed an action for annulment by Ireland underArticle 230 EC Treaty (see ECJ, Judgement of 10February 2009 - Case C-301/06 -), based on the factthat the dominant purpose of the directive to facilitatethe prosecution of criminal offenses and wastherefore a legal basis, only the unanimity of the EUTreaty rules presuppose old version on police and

judicial cooperation, in particular Article 30, Article 31paragraph 1 letter c, and Article 34 paragraph 2, pointb EUV aF into account (see action came on 6 July2006 - Case C-301/06 - OJ C 237 of 30 September2006, p. 5). Here, the Court held expressly clear thatthe decision does not have a possible violation ofCommunity fundamental rights as their object (seeECJ, Judgement of 10 February 2009 - Case C-301/06 -, para. 57).

84c) According to Article 1 paragraph 1 Directive2006/24/EC, Directive aims to harmonize nationalrules on the obligations of providers of publiclyavailable electronic communications services or of apublic telecommunications network for the retention

of telecommunications data to ensure that the Datafor the purpose of the investigation, detection andprosecution of serious crime, as defined by eachMember State in its national law, are available. Onadoption of the Directive, the Council to the MemberStates had to define the term "serious crime" inArticle 2 paragraph 2 of the Framework Decision onthe European arrest warrant and surrenderprocedures between Member States (2002/584/JHA )of 13 June 2002 (OJ L 190 of 18 July 2002, p. 1)referred to crime and crimes involving the use oftelecommunications facilities to consider appropriate(see Council document 6598/06 ADD 1, p. 4). The

use of the data sets for a security role of theintelligence or not the policy.

85Under Article 3 para 1 Directive 2006/24/EC requiresMember States to ensure that stored in Article 5 ofDirective 2006/24/EC on data in a listed stock, whichunder Article 6 Directive 2006 / 24/EG a period of atleast six months and a maximum of two years fromthe date of the communication to be established.Under Article 4 Directive 2006/24/EC Member States

must ensure that the stored data be disclosed only incertain cases and in accordance with national law tothe competent national authorities. Each MemberState shall determine the method and thereby theconditions for access to data in accordance with therequirements of necessity and proportionality must beobserved.

86Article 7 of Directive 2006/24/EC requires Member

States to ensure compliance in regard to any data tobe retained with certain minimum standards of datasecurity. In addition, the rules remain the Directives95/46/EC and 2002/58/EC applicable (see recitals 15and 16 of Directive 2006/24/EC). ensure, underArticle 8 Directive 2006/24/EC, Member States thatthe stored data and all other necessary informationcan be forwarded immediately on request to thecompetent authorities. Under Article 13 of Directive2006/24/EC, Member States shall also ensure thatmeasures to implement the provisions of Chapter IIIof Directive 95/46/EC providing for judicial remedies,liability and sanctions in view of the data under theDirective 2006 / 24/EG be fully implemented. Noregulation shall adopt the policy as to who shouldbear the cost of data storage.

873rd § 100g Code of Criminal Procedure has also forthe Council of Europe Convention on Cybercrime(Federal Law Gazette II p. 1242, hereinafter theConvention on Cybercrime) importance (seeBundestag document 16/5846, p. 27 f. and 50). TheConvention requires not only the creation ofsubstantive criminal law to combat computer crime,but also to certain Procedural law rules. In particular,under Article 16 of the Convention, the competent

authorities authorized to order the immediate backupof traffic. Persons in whose control are such datashall be obliged to secure the short term and intact, toallow competent authorities to obtain their transfer(using the Quick Freezing). A similar provision wasunnecessary for the legislature, however, becausethe data is kept frozen because of the comprehensivedata provided for in § 113a TKG already drawn up(see Bundestag document 16/5846, p. 53).

884th At the request of the complainant in theproceedings a BvR 256/08, the Constitutional Court

by order of 11 March 2008 adopted an interimmeasure, could be after the § 113b sentence 1 No. 1TKG restricted to the merits of the case only applied(see BVerfGE 121, 1). By order of 28 October 2008 ithas extended that order so that could also be madeby § 113b sentence 1 No 2 and 3 of the Act to themain decision only with restrictions for use (seeBVerfGE 122, 120). In addition, the federalgovernment was ordered to report to each forsuccessive periods of several months on the practicalimplications of the Act provided in § 113a of the data



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storage and interim measures for the prosecution.The federal government is that for the periods 1 May2008 to 31 July 2008, from 1 August 2008 to 1 March2009 and 1 March 2009 to 1 September 2009complied with.

I I

891st The complainant in the proceedings a BvR 256/08dispute the § § 113a and 113b the Act. They allegethe violation of Article 10, Section 1, Article 12,Section 1, Article 14, Section 1, Article 5 paragraph 1and Article 3 paragraph 1 GG. Which have joined withthe same arguments in the reference number 1 BvR508/08 proceedings conducted about 34,000 othercomplainants.

90a) The constitutional complaints are admissible.

91aa) The complainant, a) to 3) and 5) to 8) used asacademics, lawyers, managers, accountants andchartered accountants and investigative journalistsworking in private and business varioustelecommunications services such as fixed line,mobile, Internet services and e-mail accounts . It isnot reasonable for them to complain first before thecompetent courts against the telecommunicationscompanies.

92The complainant on four developing) and sells thesoftware for a commercial Internet anonymity service.

The service will be provided in conjunction with otherindependent operators, will use its software on itsservers. It also operates the complainant himself apublicly accessible server anonymization. Theanonymity service is provided as a result of thechallenged norms no longer economical. Herthreatened the loss of their customers, becausecustomers because of the retention could no longertrust to remain anonymous. In fact, the storagerequirement a profession coming. The storagerequirement it concerns itself, present and immediate,because it can not be expected to deal with that byignoring the risk of fines or criminal penalties.

93bb) The admissibility of constitutional complaints isnot contradicted, that the contested rulesimplementing the Directive 2006/24/EC. The federallegislature is incompatible with the Directive2006/24/EC, where the stored data according to §113a Telecommunications Act should not only beused for serious crimes, but also security and to carryout intelligence tasks.

94The Federal Republic of Germany was also notobliged to implement Directive 2006/24/EC. This iscontrary to Article 95 and against community rights. Itviolates the right to respect for private life andcorrespondence under Article 8 ECHR and leads to adisproportionate interference with guaranteed byArticle 10 ECHR the freedom of expression. TheDirective should therefore not be used in Germany. Atleast the constitutional complaint was therefore

admissible, because the challenged norms for anannulment by the European Court of Justice for apreliminary ruling under Article 234 EC Treaty (nowArticle 267 TFEU), whose implementation is sought isconsidered in its entirety based on the fundamentalrights of the Basic Law could be. Keep the CourtDirective 2006/24/EC not to be invalid, the FederalConstitutional Court to declare them askompetenzwidrig inapplicable and the challenged § §113a and 113b TKG be discarded.

95b) The constitutional complaints were well founded. Ifit were a storage of data on stocks, which isunconstitutional. It was now possible to determine allthe communication partner of a person in the last sixmonths. The storage of radio cells, will allow thephone in their area, virtually uninterrupted motionprofiles. The storage of the IP address it allows thefuture to track the internet usage of the past sixmonths. It states that does not appear that theretention of an effect measurable clearance rate, orcrime rates.

96aa) The challenged provisions violate Article 10paragraph 1 GG. Stored fell within the scope of the

telecommunications secrecy. The Internet fall underArticle 10 paragraph 1 GG in that connection, it wouldbe if used as a medium of mass communication. Thewith § § 113a, 113b TKG reasonable interferencewith the secrecy of telecommunications is not

justified.

97(A) Ensuring a proper criminal justice can not justifythe retention. In the area of cyber-crime issue in thefirst place to assets. As far as telecommunicationsfunds are used only as an aid in the commission ofconventional crime, legal protection of all types were

affected. The suitability of data retention to combatorganized crime or the prevention of terrorist attackswas assessed as very low.

98General preventive effects of retention are notexpected to seriously. In the field of law enforcementonly decided milder powers of intervention areappropriate than in the defense against specificthreats. Data that were obtained to prevent threats tothe highest legal protection should not be used to



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prosecute minor offenses. A secondary use isacceptable only if the collection of data and to thepurpose for which details are given of secondary use,is proportionate. Which is not taken into account.Advanced investigative powers of law enforcementauthorities could increase the clearance rate at bestminimal. Whether this would lead to a reduction in thecrime rate is extremely questionable.

99

The suitability of the retention of legal protection isquestionable. Although it prevents thatcommunication processes are not allowed tounderstand why, because their circumstances are notsaved. However, it is unclear how much demandthere is to supply data. In any case, a variety ofcommunications data for billing purposes andevidence will stored for up to six months. Criminalgroups took advantage of opportunities the otherhand, anonymous prepaid plans such astelecommunications or Internet cafes.

100(2) As compared to the less restrictive measureretention get the quick-freezing process intoconsideration, which concerned the protection of allstored traffic still a person. In very exceptional casesis the arrangement of the storage of all availabletraffic data at a specific time possible (GlobalFreezing).

101(3) The severity of the procedure in Article 10paragraph 1 GG derives from the fact that all personsare affected, the telecommunications services to thepublic would take to complete. The storagesuccesses without suspicion. The mere possibility

that data may be needed for purposes of lawenforcement or security does not justify theintervention. The data retention enables the creationof telecommunications and motion profiles and havea great spread. This is all the more weighty thantelecommunications taking place in the expectation ofcomplete confidentiality.

102A generalized, overall supervision in the form of acomprehensive coverage of telecommunicationslinks, as it represents the retention is, even to defendthe greatest dangers unconstitutional. The probability

that the stored data would be needed later to securityor law enforcement purposes, be negligible and couldnot justify such a serious intervention. The dataretention enables personality images with anunprecedented accuracy. The communication ofcontent data are extremely meaningful. Access to thecircumstances of the telecommunications weigh noless difficult than that on the communication content.It enables comprehensive personal and behavioralprofiles. Traffic data provided a wealth of informationon social relations.

103Data retention also increases the risk of wronglyidentifying measures to be suspended or unjustlycondemned, and the risk of data abuse. Traffic couldbe selectively used against unpopular persons andwere suitable for the control of individuals and groupsas well as for industrial espionage. Only the waiver ofeffectively protect data from misuse.

104The data retention would undermine the impartialityessential to democracy of communication. Theprotection of human dignity requires a degree ofunobserved communications, particularly in thecontext of special relationships of trust. The damagethat arises through the monitoring of the citizen,would not offset by the resulting gain in efficiency.Data retention has reduced the development ofcountermeasures and could ultimately result in theamount of available data even telecommunications.Other hand, the increasing digitization of thedecrease of the stored traffic data for billing purposesthe same even without the retention of more than.

105This is disproportionate, because the expectedbenefit in a significant imbalance to theirdisadvantage for the individuals concerned andsociety as a whole stand. The objects of legalprotection is improved only in few cases. With areduction of crime levels is not likely. In view of theimportance of other personal data for lawenforcement threatens a dam break.

106bb) The contested legislation was also contrary to

Article 12 paragraph 1 GG. , § § 113a and 113b TKGaccessed disproportionately into the professionalfreedom of commercial providers oftelecommunications services and the professionalfreedom of nationals of confidence professions.

107So it affects the relationship of trust between lawyerand client, where it can be revealed by analysis oftelecommunications traffic, the attorney-clientrelationship. The retention of the frightentelecommunicative contact with specializedconsultants, because it far-reaching conclusions on

the health and mental status, religion or financialcircumstances could be drawn. Journalists threatenedwith the loss of informers. This negative effectprevails over any measurable public interest. Giventhe small number of cases in which it depended oncommunication by and with professional secrets, theneeds of Legal protection are guaranteed withoutdata retention.

108



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As regards the retention of the service violates theproportionality requirement. A scheme under whichthe consequent investment to be repaid does notexist. In the absence of adequate compensationarrangements on cost management, processing andtransmission of inventory data to the competentauthorities, the telecommunications company hadInpflichtnahme but unreasonable. Without adequatecompensation to them should the performance ofduties of law enforcement and security functions to be

saddled with a core of the state.109cc) Unless previously used facilities bytelecommunications service providers as a result ofdata retention could no longer be used, accessed, § §113a and 113b TKG also enteignungsähnlich in theproperty guarantee of Article 14 paragraph 1sentence 1 GG. This is not compatible withoutadequate compensation with Article 14 paragraph 1GG.

110dd) § § 113a and 113b TKG also contrary to Article 5paragraph 1 GG. They violated the freedom ofexpression, information and broadcasting freedom.The more expensive the telecommunications dataretention. This force less financially citizens,businesses and organizations to restrictions. Inaddition, providers and users would be deterred fromstaatskritischen particular information. The impact ofinformation stand here does not preclude that notreferring websites because of § 113aTelecommunications Act should be saved. Provider ofTelemedia saved often in violation of the TelemediaAct, the IP addresses of users. Then the publicauthorities had to § 15 paragraph 5, sentence 4 in

conjunction with § 14 para 2 TMG access.Expression, information and broadcasting areconstitutive of a liberal democracy. In view of theeffect on overall social information and its only limitedvalue in the retention grab a disproportionate Article 5paragraph 1 GG.

111ee) § § 113a and 113b TKG eventually hurt thegeneral principle of equality under Article 3 paragraph1 GG in several respects.

112

This applies first of all, as far as successes only forthe exchange of information via telecommunicationsnetworks, but not for the spatial-direct exchange ofinformation, storage of communications data. Giventhe high intensity of intervention data retention thatdifferentiation is not particularly justified since in thefield of spatial-direct communication often would findother evidence.

113

It also violates Article 3 para 1 Basic Law that,although the use of recorded information services onthe Internet, but not that of traditional mass mediasuch as magazines, books and television. That masscommunication is particularly of injurious ontelecommunications networks, there is no conclusiveevidence. An unjustified difference in treatment isalso that the retention does not cover nontelecommunicative covers computer use. Similarly,Article 3 para 1 Basic Law is violated because the

legislature had not justified apart from the choice ofmilder agents such as technical, structural andenlightened preventive measures or the quick-freezing method.

114Nor were the difference in treatment between thetelecommunications as electronic information and thepostal system embodied as a detached exchangeinformation, the unequal treatment oftelecommunications undertakings compared withpostal companies, the unequal treatment of the use oftelecommunications services to access to otherservices and the unequal treatment oftelecommunications companies over other companiessuch as banks and airlines constitutionally justified.

115Also violates the equal treatment of smalltelecommunications companies to the generalprinciple of equality, because this was a group oftypical cases without sufficient cause be chargedmuch more.

116not be justified before Article 3 paragraph 1 GGfinally, the enslavement of private

telecommunications companies withoutcompensation for public purposes. The criteria for theadmissibility of a special levy to finance function arenot met. The prevention of threats and thepunishment of crime are the general tasks that needto be funded from general taxation and not thecompanies concerned and their customers are likelyto be imposed.

1172nd The complainant in the proceedings a BvR263/08 contact except against § § 113a and 113bagainst TKG § 100g Code of Criminal Procedure,

insofar as it relates to the collection of stored data inaccordance with § 113a TKG. They allege a violationof Article 1, Section 1, Article 2 para 1 in conjunctionwith Article 1, Section 1, Article 10 paragraph 1 andArticle 19 paragraph 2 GG.

118a) The constitutional complaints are admissible.

119



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aa) The complainants are lawyers, a universityprofessor, a journalist, a former presidentFinanzgericht, a student and member of the GermanBundestag, or Parliament of a country. Thecomplainant to 3) is now Minister of Justice.

120Each of them take multiple providers to complete.They used private, freelance or their political activitiesfixed line, mobile, Internet access and e-mail

accounts and are therefore affected by the retentionof telecommunications data.

121bb) That the retention successes even by the privatesector was open to the admissibility of constitutionalcomplaints against not. For they will immediatelyordered by the statutory scheme of § § 113a and113b the Act.

122cc) It is not reasonable for the complainants, pursuingthe filing of constitutional complaints in each case theordinary courts.

123dd) The constitutional complaints are certainlyallowed, unless the legislature in the implementationof Directive 2006/24/EC is contrary to nationalconstitutional law, although the remainder of his travelpermit implementation of its attention, or if it wentbeyond the rules prescribed in the directive. This isregarding storage purposes, the use of the data

justifying crimes, the elimination of precise rules andprocedures of the agencies verwendungsberechtigtenthe case.

124ee) In addition to Directive 2006/24/EC is ultra viresand could in Germany, which has no legal effect. Alsodecide whether an act of the European Community iscontrary to Article 1 GG, and could therefore claim inthe domestic law does not apply solely by the FederalConstitutional Court. A submission to the EuropeanCourt is not initiated. Insofar as the FederalConstitutional Court is not entitled to consider, decideon the validity of Directive 2006/24/EC itself, asubmission to the European Court is beingstimulated. The Directive 2006/24/EC was adoptedwithout any legal basis and with Community

fundamental rights, in particular Article 8 ECHR,incompatible.

125b) The constitutional complaints were wellfounded.

126aa) Directive 2006/24/EC is invalid. It was adopted onthe basis of Article 95, although not the establishmentor functioning of the subject have, but measures of

police and judicial cooperation in terms of Article 29et seq TEU aF

127bb) The retention under § § 113a and 113b the Actinfringes on human dignity. In a free society shouldnot everyone who use a means of communication asa potential criminals or troublemakers are treated.give a free society without trust in a confidentialcommunication is not there. There must be a core

area of personal life be left in which the individual isfree from government monitoring, control or influence.With the retention of state erect an infrastructure todestroy the confidence of citizens in a freecommunication and can enable further monitoring infuture. This is contrary to human dignity and theprinciples of constitutional democracy.

128cc) § § 113a and 113b TKG disproportionatelyattacked in the right one to informational self-determination under Article 2 para 1 in conjunctionwith Article 1 paragraph 1 GG.

129The data provided for in § 113a TKG verdachtslossuccesses and, in general. The data made it possibleto create personality profiles. The stay of the user of amobile phone let the evolution over the last sixmonths. There is no provision for the cancellation ofthe core of the private life of data concerning a hit.The providers are not required to document thetransfer and that the transmitted data to be marked.

130TKG § 113b does not satisfy the principle of certainty.Use only as a flat rate of prosecution of criminal

defense serious threats to public safety and theperformance of intelligence tasks are mentioned. It isnot enough that the further specification of theintervention in order to access the respectivefachrechtlichen standards successes. For thefundamental intervention successes already with thestorage of the data. According to the requirement ofclarity, the storage must be determined preciselypurpose. Because the countries are solelyresponsible for the access arrangements, the use ofthe data is completely overwhelming.

131

The surgery stand in view of its gravity in proportionto the recoverable value. Data retention let not expecta significant gain for the fight against crime.

132dd) The contested provisions also violate the secrecyof telecommunications under Article 10 of the BasicLaw in its essential content.

133



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ee) Decision latitude, which would leave the Directive2006/24/EC, are not filled in the Constitution. § 113bTKG go beyond the objective of the directive, if thestored data would be provided to all intelligencepurposes. § 100g Code of Criminal Procedure definesthe range of offenses that could justify the retrieval ofstored data, not clear. It remains open when anoffense is also in the case of considerableimportance. In contrast, it in fact - unless youconsider relevant Community law at all - in fact and is

standard for any future power separately to clarifywhether their purpose was defined by European lawmandatory and whether it reflects a nationalconstitutional law. § 100g Code of Criminal Procedureleaves the retrieval of traffic data for each offensecommitted by means of telecommunication to go sofar and repel the purpose of the directive, "terroristoffenses.

1343rd The complainant in the proceedings a BvR586/08 dispute the § § 113a and 113b and TKG §100g Code of Criminal Procedure. They allege theviolation of Article 10 paragraph 1 and Article 2 para 1in conjunction with Article 1 paragraph 1 GG.

135a) The constitutional complaints are admissible. Thecomplainants - Members of the German Parliamentand members of the group of Alliance 90/The Greens,who are also part-time as a lawyer or doctor wereactive - even, direct and present in their right underArticle 10 paragraph 1 GG, and their right toinformational self-involved.

136Nor can the scheme, as the Directive 2006/24/EC

leave considerable scope for implementation, arereviewed extensively by the German fundamentalrights. defined types are mandatory, only the data tostore categories and, with the minimum storageperiod of six months. Implementation scope existedregarding the storage and uses the access-points, theaccess conditions and procedures for the allocationand data security requirements. Where MemberStates provide that, in the limits of Article 15 para 1Directive 2002/58/EC to the security and thefulfillment of the tasks of the intelligence services useother than law enforcement, they were subject to fullconstitutional scrutiny. The determination of serious

crimes for prosecution, the retention successes lie inthe hands of the Member States. Article 7 of Directive2006/24/EC lays down minimum requirements, themore extensive data protection requirements in thenational constitutional law is not blocked. Finally, thefinancing of the retention in the Directive is notregulated.

137A complete examination of the constitutionalprovisions on data retention is also possible if the

Directive 2006/24/EC is invalid, the Court finds theinvalidity of the policy or if a review of thecompetence of the European Community to adopt thedirective by the Federal Constitutional Court,exceptionally even am considering. A valid templatecan be based on a particular violation of Communityfundamental rights.

138b) The constitutional complaints were well founded.

The challenged provisions violated Article 10paragraph 1 GG. This protects the confidentiality ofthe circumstances of the communication process. Inits scope of protection therefore fell under § 113apara 2 TKG to memorized telephone traffic data andaccording to § 113a para 3 and 4 of the Act to save e-mail traffic and Internet data. The fact that the Internetand mass communication takes place, the traditionalfreedom of broadcasting had been allocated to thatState does not. That individual communication couldbe conveyed is sufficient, to trigger the protection offundamental rights.

139The regulations on data retention intervened in thescope of protection of Article 10 GG. The stateintervention will begin with the traffic data storagerequirement of § 113a Act. He'll continue with theapproved in § 113b TKG transmission of traffic datato government authorities. Other acts of interferencewere the evaluation and use of data by the authoritiesreceive information and the transfer of data to otherauthorities or private.

140Sufficiently is intended § 100g paragraph 1 No. 1Code of Criminal Procedure, as it has in crime in the

case of major importance and concretizing the 100ain para 2 Code of Criminal Procedure § offensesdescribed refers. Critical to assess whether § 100g, 1No. 2 Code of Criminal Procedure with regard to §100g para 1 sentence 2 of Criminal Procedure. Whenthe data collection stand in proportion to theimportance of the matter, except for citizens notidentified with the necessary clarity. The problem isthe determination of § 113b Act. In the area ofsecurity and intelligence was not foreseeable, arelikely to access the extent to which enforcementagencies to supply data.

141Data retention also contrary to the principle ofproportionality. Effective law enforcement is indeed alegitimate purpose. Also might the suitability andnecessity of data retention does not deny. The Quick-freezing procedure was not equally well suited,because it was irrelevant, if not traffic or no longer inexistence. Data retention is, however inappropriate.Traffic could be significant conclusions about thecommunication or movement behavior. Because oftheir automatic analyzability they are for computer



16

surveillance methods and strategic monitoring by theintelligence services are particularly suitable. Theyprovided investigative leads and allowed the social,political or economic relationship networks toreconstruct. Comprehensive personality profiles couldbe created. Particularly distressing factors were theVerdachtslosigkeit of storage and their extraordinaryspread. Account will also be the effect on overallsocial behavior and the democratic discourse andMissbrauchsbefürchtungen.

142§ 100g StPO go about implementing Directive2006/24/EC beyond what is necessary, because theretrieval of the stored data according to § 113a TKGcan generally also be due to criminal activitiescommitted by means of telecommunication. Already amean of crime for access to the data store. Thesesystems increase the risk of being exposed tounwarranted suspicion and thus the object ofinvestigation measures to be onerous. The datacollection was made in secret. § 100g para 2 inconnection with § 100b and § 101 Code of CriminalProcedure grant only a posteriori, weakened by arestrictive practice receive legal protection. Theeffectiveness of the judges of title was controversial.The existing access facilities are usually beensufficient. In consideration of alternative investigativemethods such as the quick-freezing procedure fallsthe adequacy assessment is negative.

143§ 113b sentence 1 No. 2 TKG opens up access todata stored anlasslos already substantial danger topublic safety. Intelligence surveillance activitiescarried out in advance of specific threats atsignificantly reduced remedies. give restrictions on

the interception of Members not. Given theirVorwirkungen on the behavior of citizens and thedemocratic discourse, the rules were unreasonable in§ 113b sentence 1 No 2 and 3 of the Act.

144Professional secrets are not protected separately.Especially prejudicial in this act to physicians andoperating exclusively as a criminal defense attorneysfrom. It also lacked sufficient data structurerequirements for service providers. This entailsconsiderable risks of abuse. Even less appropriate isthe use of data by private enforcement of civil claims,

as it permits a sentence of § 113b clause 2 the Act.As could be determined in this way only the owner ofconnections by the subscriber does not necessarilyagree with the Internet users, whether in pursuit of amuch larger range of onlookers expected.

145The obligations under § 113a para 10 TKG to followin the telecommunications sector due diligence andthrough technical and organizational measures toensure that the data are accessible only by specially

authorized persons would not further concretized.The data will not be sufficiently guaranteed. Theweight of the intervention is not counterbalanced byits value. Particularly in the case of organized crimeand terrorism, he was the least, since refusing to paythe perpetrator the power to subvert the storage,which is easily possible. The effects of storage ondemocratic discourse and the dangers of databreaches could not be sufficiently reduced by limitingthe uses.

I I I .

146The constitutional complaints to the FederalGovernment, the Federal Administrative Court, theBundesgerichtshof, the Federal Commissioner forData Protection and Freedom of Information and DataProtection on behalf of the countries have taken theBerlin Commissioner for Data Protection andFreedom of Information status.

1471st The federal government holds the constitutionalcomplaints inadmissible in part, in any event,unfounded.

148a) the constitutional complaints are inadmissible ifthey were directed solely against the § § 113a and113b the Act.

149aa) The subject of the verification of competence ofthe Constitutional Court, provided they comply with

the mandatory requirements of the Directive2006/24/EC. As far as regulatory scope existed, thefederal law based its implementation as provided forin Directive 2006/24/EC regulatory minimum. Anerupting Act lies against not because it's not aboutthe division of powers between the EuropeanCommunity and the Member States, but go only tothose within the European Union. At European level,finally, there is sufficient protection of fundamentalrights. A violation of human dignity is also notapparent.

150

bb) The complainants were not given the primacy ofCommunity law beschwerdebefugt. § 113b sentence1 No. 1 Telecommunications Act and § 100g Code ofCriminal Procedure did not go beyond the limits of theDirective 2006/24/EC storage purpose. In thedefinition of serious crimes are also consideredappropriate means of telecommunication facilitiescommitted crimes. Directive 2006/24/EC to let theextension of the storage order to use the security andintelligence performance of work. § 113b sentence 1No 2 and 3 of the Act in so far contains only one other



17

legal use provision. This was however not alone inthe constitutional process rügefähig because theyaffect fundamental rights no matter who goes on byDirective 2006/24/EC even arranged complaints.Additional complaints could only result from powerstandards, approved to continue the use of storeddata. TKG § 113b does not contain such provisions.There regulated purposes rather restricted one, onlythe potential data uses. , § § 113a and 113b TKG hadno further berufsregelnde trend in the occupations

pursued by the complainants as a lawyer or a journalist. Article 14 of the Basic Law is not affected.The storage requirement not shorten a right todispose of the question, but the EHRC anindependent behavior of duty. A violation of freedomof expression is excluded from the outset. Thestorage in accordance with § 113a TKG wasmeinungsneutral.

151cc) The constitutional complaint by the complainanton 4) in a procedure BvR 256/08 foundered on theprinciple of subsidiarity. It is not clear that legalprotection not by the specialized courts was possible.

152b) In any case, the constitutional complaints wereunfounded.

153aa) § 113a TKG is constitutionally unobjectionable.

154(A) Scheme interference in the protective scope ofArticle 10 GG. It, however, go only to a requirementfor private storage of certain data with the aim ofenabling a subsequent access. Thus, § 113a of the

Act differs categorically state power standards to usethe gathered data. TKG § 113a constitutes amoderate interference with Article 10 paragraph 1 GGdar. He only effect that the data for half a year, aclaim for cancellation of those affected werewithdrawn. The data do not relate to communicationscontent. They came only after an additional qualifiedpower standard in the knowledge area of the state.Finally successes as storage is no secret. The data tobe stored and the duration of storage are definedclearly and conclusively.

155

Purpose of § 113a TKG is to adapt the fight againstterrorism and serious crime in the conditions ofmodern communication technologies. TKG § 113a issuitable. He prevented that § 100g Code of CriminalProcedure by the rise of flat rate tariffs and therelated decline of stored data in accordance with § 96of the Act and by the steady increase in the use of theInternet by criminals lose his footing.

156

The analysis of traffic data was essential for theprosecution. In particular, it could be evidence ofcrimes committed when, for stays of suspects incrime scene area, are obtained for forward andNachtatverhalten of suspects to connections amongthe suspects, along escape routes and to identifyfurther suspects. Especially for the prosecution ofdrug crime, the provision of location data is important.Traffic will come to the verification of suspects orsubmissions in determining the whereabouts of

accused importance. The elucidation of thedistribution of child pornography images on theInternet can practically only be based on traffic data.When tied or professional knowledge of the crimescommitted on communication skills for theinvestigation of organizational structures and serialoffenses is essential. Against the appropriateness ofthe data also speak to the possibility of bypassingthem.

157TKG § 113a is also required. The quick-freezingprocess was not as effective. It could hold only thosedata that are stored in any way. It is useful only if itrelates to a gegenwartsnahen facts.

158Finally, § 113a TKG was also appropriate. TheAnlasslosigkeit endorse the appropriateness of thestore, not from the outset. Your say nothing about thespread concrete related stress. The collection ofpersonal data would be retained not automaticallyunconstitutional. The data would be stored by privatecompanies for a particular purpose, and only becauseof further powers by the state standards noted. Thestored data according to § 113a TKG were indeed todraw conclusions about the personality of the person

concerned, but are of limited sensitivity. They do notconcern the content of the communication and goingin terms of their personality does not have relevancealso to other existing schemes to save data. Thestore also open successes. The obligation to maintaininformation about whether the German law of theCommercial Code, the Tax Code or the Banking Actknown. Constitutional limitations have developed theFederal Constitutional Court only to query the facts.The store itself is, moreover, but probably not toounreasonable. However, should the data query in aqualified way be limited. The storage period of sixmonths leave by the conditions justify the persecution

of specific crimes. An intimidating effect is notproduced by § 113a Act. Decisive was not thesubjective perception of the norm addressees, but atrue understanding of standards.

159(2) the storage for the telecom service provider costshurt neither Article 12 nor Article 14 GG. Article 14 ofthe Basic Law does not confer any general protectionof assets. TKG § 113A but neither the substance northe organization of the rights of the complainant



18

relates to their companies. The information given forcancellation of technical facilities are unsubstantiated.The freedom of occupation is not affected. Theplaintiffs were to practice their profession without thechallenged regulation is not different. Only the serviceproviders are burdened with additional duties. Theuse to perform a public duty to redeem himself orfrom any compensation.

160

(3) The scheme was compatible with Article 3paragraph 1 GG. Telecommunications and directcommunication are not comparable. Directcommunication and electronic communication couldnot be saved to the same extent. The difference intreatment between telecommunications and postalservices was justified. Slow postal communication isfor use to commit criminal acts less suitable thantelecommunications. Large and smalltelecommunications companies would not be treateddifferently. Before unequal economic impact of therelevant protected liberties, not the general principleof equality. A special levy the equality principle doesnot lie.

161(4) The constitutional requirements for data securityare met. § 109 para 1 of the TKG requires the serviceproviders, appropriate technical means or othermeasures taken to ensure the privacy, protection ofcommunications and protection oftelecommunications and computer systems againstunauthorized access by employees and third parties.Operators of telecommunications systems arerequired under § 109 para 3 of the TKG, the FederalNetwork Agency to submit a security plan that willdescribe the technical arrangements and other

protective measures to meet the obligations for datasecurity. It should update and rectify the request ofthe Federal Network Agency. The service providerswould have to be observed according to § 113a para10 of the Telecommunications Act in thetelecommunications sector due diligence and torestrict access to data through special appropriations.Violations of the secrecy of telecommunications anddata protection requirements are finable to § 148TKG criminal or § 149 para 1 No 16-18 Act. § 115 ofthe Act authorizes the Federal Network Agency toenforce the data protection regulations. Finally, thecompanies subject to the controls of the Federal

Commissioner for Data Protection and Freedom ofInformation.

162bb) § 113b, too, the Act was constitutional. It restrictsthe storage purpose and is sufficiently defined. Theuse of data directed to other statutory standards, thedetermination of a separate examination needed. Ascompared to the content monitoring oftelecommunications lesser surgery, the use of thedata security according to § 113b sentence 1 No. 2

TKG was not to be subject to the highest-thresholdimmediate concern for legal rights. Judgereservations were to be settled in the respectiveenabling rules. The transmission of data to performintelligence functions under § 113b sentence 1 No. 3TKG was not objectionable. Within certain limits, evena anlasslose control of telecommunications contentfor intelligence purposes had been assessed as aconstitutionally permissible (reference to BVerfGE100, 313 <358 et seq).

163cc) was also the Constitution, Code of CriminalProcedure § 100g. The possibility of criminalproceedings traffic query in its present form isrecognized. A comparison, more intensiveintervention in the telecommunications secret lay inaccessing stored traffic data in accordance with §113a TKG not because more data were available.Given the content compared with the monitoring oftelecommunications traffic data collection was thelower weight it logically, if Code of Criminal Procedure§ 100g less stringent requirements on theadmissibility of data collection in places as § 100aCode of Criminal Procedure.

164As far as § 100g para 1 No 1 is linked to the criminaloffenses of the Code of Criminal Procedure § 100apara 2 Code of Criminal Procedure and also in caseof an offense requires considerable importance, theFederal Constitutional Court have recognized this asa sufficiently precise. Also § 100g, 1 No. 2 Code ofCriminal Procedure was safe. The choice of themeans of law enforcement depends on the ability toeducate the offenses in question at all. The deceptive§ 100g para 1 No 2 and § 100g para 1 sentence 2

Code of Criminal Procedure bill, by charging for thecrimes committed by means of telecommunicationstraffic demand at the reservation alternatives and thelack of identification of another proportionality test. Aneven further restriction of access opportunities inplaces free for a whole range of communications bylaw enforcement, even though the criminal justiceenjoying constitutional status. § 100g Code ofCriminal Procedure does not violate the core area ofprivate life. The telecommunications traffic concernthat despite the ability to create with the help ofcommunication and movement profiles, not inintensive manner.

1652nd The Federal Administrative Court in thecontested legislation provides for an interference withArticle 10 paragraph 1 GG, whose justification isdoubtful. The sentence in § 113b 1 TKG applicationslisted are so broad that, in the time of storage isforeseeable, should be used for what purpose thedata. It could, violation of the prohibition on thecollection of personal data to be retained vague or notyet determinable are purposes. The fundamental



19

restriction is also of no small weight. The storagerequirement covers data with high personalrelevance, the major conclusions about thepersonality and personal circumstances of the user,its social environment and its movement behavior andthe nature of the content of communication wasallowed. Possible was the creation of personalprofiles. The data could have serious consequencesin the event of criminal proceedings for the individual.Misuse of data is possible. The store has an

enormous breadth. Their spread could cause asignificant intimidation effect. On the other hand, thedata would be deleted in many cases without havingbeen sent to government agencies. The uses are notlimited to the protection of high-level of legalprotection. § 113b sentence 1 No. 2 TKG was notclear from which legal rights might justify the use ofdata. § 113b sentence 1 No. 3 TelecommunicationsAct refers to a variety of federal and Land jobdescriptions. Perhaps the data are thus intended toprotect interests which could not justify lying in theengagement of their storage in the secrecy oftelecommunications.

1663rd The Federal Court has by the Chairman of thefirst Criminal and one of the investigating magistratepointed out that had been with crimes committed bymeans of telecommunication data, the identification ofthe perpetrator would have made so far in the time ofrequest for information regularly deleted already. Interms of Internet conclusions were excluded on thecontents of experience. Because of the customarypractice of flat rate contracts, the data line is often 24hours a day would be maintained. In this case, arederived from the stored data in most cases not eveninformation on the frequency and duration of Internet

usage. In e-mail traffic, particularly the storage of theIP address is necessary to have before theintroduction of data retention only under certainconditions on the end of the connection also may bestored. Since the IP addresses had been deleted inthe past few years after one to two days, aprosecution of property crimes or acts of child abuseis usually not have been possible. Without retentionon the internet for criminals, there is hardly any risk ofdetection. There arises a legal vacuum. ThePresident of the Federal Court pointed out that thetraffic would only indicative effect and in need ofsupport through further investigations. Areas of social

behavior were not already so go areas, as this would,apart from their preventive monitoring.

1674th The Federal Commissioner for Data Protectionand freedom of information keeps the data accordingto § 113a anlasslose the Act unconstitutional. Fromtheir unconstitutionality follow the rules of § 113b ofthe transmission Act. § 100g Code of CriminalProcedure is unconstitutional because the use wasdefined threshold unreasonably low. At the same time

the regulations were contrary to Article 8 against and10 ECHR.

168The authority for the retention was not sufficientlyspecific. The uses are not limited to achieve preciseand limited. The prosecution of criminal activities inthe field of terrorism and organized crime will beimproved not sustainable, because the affectedgroups of perpetrators had many opportunities to

circumvent data retention.169Formed the communication traffic behavior from moreintense. Particularly sensitive are data that relate tocommunication with professional secrets and forwhich it therefore needed differentiating rules. Thesensitivity of the data to be retained due to technicalinnovations to take on. Traffic allowed to drawconclusions about behavior and interests as well asfar-reaching insights into the movement andcommunication behavior. They reflected the socialnetwork against the person concerned. Themembership of parties, trade unions, or citizens'groups could become clear. Together with informationon the profession or the business activity of the otherparty would result from traffic draw conclusions as tocall content. Time and frequency of connectionsallowed conclusions on the intensity of contacts. Itcould be comprehensive personality and sociogramsimages are created. Confidence in the use of modernmeans of communication is affected by the term dataretention. Risks of abuse should be excluded to theextent possible by law. The Telecommunications Actrequires neither a separated storage of the storeddata according to § 113a TKG still safe to encryption.It contains no provisions for the award of access

permissions for logging of accesses and theexamination of historical data on individual requests.

170Was far too inadequate to use the data for thepurpose of prosecution. Access to data should at beststocks for the prosecution of serious crimes areconcerned. The conditions can be waived underwhich a notification, are too vague and not affordedthe required individual assessment. Moreover, a

judicial review of the waiver of notification is notprovided for adequately. Regarding the use of stockdata security and compliance intelligence tasks is a

risk of too low a threshold retrieval. Inappropriate isalso that § 113b TKG, the use of the Act under §113a stored IP addresses to identify the personbehind it according to § 113 TKG allows, since it isalso permissible for the prosecution of offenses.

1715th The Berlin Commissioner for Data Protection andfreedom of information provides by § § 113a and113b the Act violated the secrecy oftelecommunications in its essential content. In



20

addition, these regulations were contrary to theprohibition of retention for undefined or not yetidentifiable purposes. In any case, but they allowed adisproportionate restriction of communications. Inaddition, there is no specific purpose. § 113 sentence1 sentence 2 TKG, the use of the stored traffic datafor an exchange of information pursuant to § 113TKG enables police, at all. Any misuse of data byprivate is difficult to prevent. § 113a para 6 TKGprevent the user to move anonymously with the help

of anonymous services on the Internet. Theprotection of special relationships of trust remainexcluded. Given the seriousness of the fundamentalprocedure of the Quick-freezing procedure had to beconsidered as an alternative.

1726th The expert respondents Constanze Kurz, Prof.Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof.Dr. Alexander Rossnagel, Prof. Dr. Christoph Ruland,the Federal Commissioner for Data Protection andFreedom of Information, the Berlin Commissioner forData Protection and Freedom of Information , theFederal Ministry of Justice, composed of FederalMinistry of Economics and Technology and theMinistry of the Interior, the complainant in theproceedings a BvR 256/08 and 263/08 a BvR and theFederal Association for Information Technology,Telecommunications and New Media (BITKOM), theAssociation of German Internet Economy (eco) andthe Association of Telecommunications and Value-Added eV (VATM) have spoken on technical, factualand legal questions of the court. These concern thecommunication traffic, the data retention obligated, bymeans of telecommunications crime committed, theexchange of information pursuant to § 113 TKG,

security of supply data against unauthorized accessand possible legal embodiment of the use of thisdata. In the opinion of the Ministry of Justice havebeen involved through the Federal Ministry ofEconomics and Technology, the Federal NetworkAgency and the Federal Ministry of the Interior, theFederal Criminal Office, the Federal Constitution andthe Federal Prosecutor.

1737th In addition, the association of users of commercialtelecommunications eV (eV TELECOM), theAssociation of German Publishers and Booksellers

Association and the Association of Music IndustryAssociation expressed its opinion.

IV

174In the hearing, have expressed themselves: thecomplainant, the Federal Government, the BKA, theFederal Network Agency, the Bavarian StateGovernment, the Federal Commissioner for Data

Protection and Freedom of Information, the BerlinCommissioner for Data Protection and freedom ofinformation, as expert resource persons, Prof. Dr. Dr.hc Hans-Jörg Albrecht, Constanze Kurz, Prof. Dr.Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr.Alexander Rossnagel, Prof. Dr. Christoph Ruland, theFederal Association for Information Technology,Telecommunications and New Media (BITKOM), theAssociation of German Internet Economy (eco), theAssociation of Telecommunications and Value-Added

eV (VATM), the Association of German Publishersand Booksellers Association and the FederalAssociation of Music Industry

B.

175The constitutional complaints are allowed.

I .

1761st The complainants allege a violation of the legalprovisions of Article 10 paragraph 1 GG. They usevarious telecommunications services such as privateand business telephone services in particular,services of electronic mail and the Internet, and claimto have been affected by the storage and intendeduse of their connection to their fundamental right tomaintenance of the telecommunications secrecy.Since Art.10 para 1 Basic Law protects theconfidentiality of the circumstances of

telecommunications operations (see BVerfGE 67, 157<172>, 85, 386 <396>, 120, 274 <307>; establishedcase-law), such a violation by the contestedlegislation possible.

177The contested provisions concerning the complainantalso directly, and present themselves. Althoughdirected the storage requirement of § 113a TKG notto the complainants concerned as a user, but to theservice provider. However, these are, without adecision space (see BVerfGE 107, 299 <313 f.>)strictly for storing the data of the complainant

committed. TKG § 113a thus leads directly to a storeand present data of the complainant for the onesentence in § 113b TKG intended purposes.

178On a direct Selbstbetroffenheit lacking with respect to§ 113b § 100g Code of Criminal Procedure and theAct not because these rules only develop on thebasis of further acts of enforcement effects and it isuncertain whether and to what extent just data, thecomplainant will be affected. If the person obtained



21

no knowledge of the law enforcement records,sufficient information to demonstrate to be touchedwith some probability of such measures. Is relevantfor this particular whether the measures have a largespread and third parties also can enter by chance(see BVerfGE 109, 279 <307 f.>, 113, 348 <363>,120, 378 <396 f.>). Thereafter, the complainantshave expressed their own concern and immediateenough. Given the substantial storage period of sixmonths and the large spread of the collected data, it

is not unlikely that in the transmission and use of thedata according to § 113b § 100g Code of CriminalProcedure and the Act also affects people who havegiven no cause for appropriate action. Statement, bythe complainant would have to accuse of crime inorder to document the Selbstbetroffenheit notnecessary (see BVerfGE 109, 279 <308>, 113, 348<363>, 120, 378 <396 f.>). Nor should they prove tobe responsible for significant threats to public safetyor to develop activities that affect the task of theintelligence cycle.

1792nd The constitutional complaint by the complainanton 4) in a procedure BvR 256/08 is also admissibleas regards Article 12 paragraph 1 GG, where sheobjects to the storage requirements associated withthe technical and financial burdens. As an anonymityservice provider, which also operates also a publiclyaccessible web server, they meet the requirements of§ 113a in principle the Act, are so far withoutcompensation or compensation rules provided. Sincethe failure to comply with these obligations is armedwith a fine (see § 149 para 1 No 36, para 2 TKG), it isalso not reasonable, in violation of § 113a TKG toawait execution file and then search against this legalfachgerichtlichen (see BVerfGE 81, 70 <82>). She is

so affected by the storage obligation directly, andpresent themselves in their professional freedom.

I I

180The constitutional complaints are not inadmissible tothe extent the challenged regulations adoptedpursuant to the Directive 2006/24/EC are.

181

However, the Federal Constitutional Court's jurisdiction exercised on the applicability ofCommunity or now Union law, which is the basis for abehavior of German courts and authorities within the

jurisdiction of the Federal Republic of Germanyclaimed, in principle, not be verified this law is not onthe scale of the fundamental rights of the Basic Lawas long as the European Communities (or now theEuropean Union), in particular the European Court ofJustice, the effective protection of fundamental rightsguarantee in general, without that fundamental law in

each case as indispensable requisite of fundamentalrights is to respect essentially similar, especially sincethe essence of fundamental rights generallyguaranteed (see BVerfGE 73, 339 <387>, 102, 147<162 f.>). These principles also apply to nationallaws, the mandatory requirements of a directiveimplemented in German law. Constitutionalcomplaints that are directed against the use ofbinding in this sense, the European Union law, arestrictly prohibited (see BVerfGE 118, 79 <95>, 121, 1

<15>).182The complainant may relate to the fundamental rightsof the Basic Law, however, so far called as thelegislature in implementing Union law, freedom has,that is, by Union law is not determined (see BVerfGE121, 1 <15>). In addition, the present constitutionalcomplaints are also permissible if the challengedprovisions are based on policy rules that have amandatory content. The complainants claim that itlacked the Directive 2006/24/EC on a Communitybasis of competence and it is contrary to EuropeanGrundrechtsverbürgungen. They strive, therefore,among other things, without that they could do thisimmediately, given their constitutional complaintsagainst the implementation of law directed against thespecialized courts, a submission by the FederalConstitutional Court to the European Court to givepreliminary rulings under Article 267 TFEU (formerlyArt 234 TEC), the Directive declares void and do sothe way clear for a review of the challengedprovisions in the light of German fundamental rights.In any event, in this way an examination of thechallenged provisions in the light of the fundamentalrights of the Basic Law in accordance with therequest of the complainant is not excluded.

C.

183The constitutional complaints are justified in essence.The challenged provisions violate the complainants intheir fundamental right under Article 10 paragraph 1GG. A submission to the European Court of Justicecan not be considered because it is not possible on apriority of Community law matters. The fundamentalrights guarantees of the Basic Law are a - differentlayout - implementation of Directive 2006/24/EC doesnot prevent.

184The constitutional complaint is unfounded thecomplainant on 4) in a procedure BvR 256/08, wheresuch claims infringement of Article 12 paragraph 1GG.



22

I.

185The constitutional give no cause for a preliminaryruling before the European Court of Justice underArticle 267 TFEU. Would have been an appropriatesubmission by the Federal Constitutional Court (seeBVerfGE 37, 271 <282>) are, in particular, if theinterpretation or the validity of Community or Union

law are involved, the priority claim before national lawand its implementation by the Federal principle, notby the scale of the fundamental rights of the BasicLaw is examined. However, such a template can onlybe acceptable and necessary when it comes to theinterpretation or validity of EU law. This is not thecase.

186The effectiveness of the Directive 2006/24/EC and atherefrom may result therefrom primacy of EU lawover German fundamental rights are not relevant. Thecontent of the Directive leaves the Federal Republicof Germany for the design of the required retention oftelecommunications traffic in her a broad margin ofdiscretion. The Directive requires Member States butto the operators of publicly available electroniccommunications networks and communicationservices for storage of virtually alltelecommunications traffic data for a period of at leastsix months imposing (Articles 1, 3, 5 and 6 ofDirective 2006/24/EC). Their rules are, but essentiallylimited themselves to recording obligations and notallow access to the data or their use by the authoritiesof the Member States. In particular, they harmonize,neither the question of access to information by therelevant national law enforcement authorities, the

question of the use and exchange of informationbetween these authorities (see ECJ, Judgement of 10February 2009 - Case C-301/06 - marg. 83). Basedon the minimum requirements of the Directive(Articles 7 and 13 of Directive 2006/24/EC), it alsolies with the Member States to take the necessarymeasures to ensure data security, transparency andredress.

187This content may Directive without violating thefundamental rights of the Basic Law to beimplemented. The Constitution prohibits such a store

not in all circumstances. Rather, they can alsobecome independent of an eventual supremacy ofCommunity law according to the requirements offundamental rights of the Basic Law arrangedpermitted (see below IV). An examination of thechallenged provisions on the total scale of theGerman fundamental rights is not to be so in conflictwith the Directive 2006/24/EC, making it to the validityand priority is not important.

I I

188The challenged regulations do not intervene in Article10 paragraph 1 GG.

1891st Article 10 paragraph 1 GG guarantees thesecrecy of telecommunications, which is the

intangible transfer of information to individualrecipients with the help of telecommunications (seeBVerfGE 106, 28 <35 f.>, 120, 274 <306 f.>) in frontof a note by The public authorities shall protect (seeBVerfGE 100, 313 <358>, 106, 28 <37>). Thisprotection covers not only the content ofcommunication. but is within a protected theconfidentiality of the circumstances of thecommunication, including, in particular, whether theytook place, when and how often between the personsor telecommunications equipmenttelecommunications market or being tempted (seeBVerfGE 67, 157 <172>, 85, 386 < 396>, 100, 313

<358>, 107, 299 <312 f.>, 115, 166 <183>, 120, 274<307>).

190The protection provided by Article 10 paragraph 1 GGis not only the first access, content with the publicpower of telecommunications operations and takesnote. Its protective effect also extends to theinformation and data processing, which follow on fromthe note of protected communication processes, andthe use that is made of the acquired knowledge (seeBVerfGE 100, 313 <359>). A fundamental operationis any inspection, recording and recovery ofcommunications data and any analysis of its content

or other use by the public authority (see BVerfGE 85,386 <398>, 100, 313 <366>, 110, 33 <52 f.>) . In thecollection of telecommunications data, their storage,their comparison with other data, its analysis, itsselective for further use or transmission to thirdparties that are each in their own intervention in thetelecommunications secrecy (see BVerfGE 100, 313<366 f.>). Consequently, lies in the arrangement tocommunications companies, telecommunicationsdata to collect, store and transfer them to governmentbodies, each intervention in Article 10 paragraph 1GG (see BVerfGE 107, 299 <313>).

191That comes under Article 2 para 1 in conjunction withArticle 1 paragraph 1 GG following right toinformational self-determination in addition to Article10 of the Basic Law does not apply. In terms of theTelecommunications Basic Law Article 10 contains aspecific guarantee, which replaced the general ruleand result from the specific requirements for the dataobtained by interfering with the secrecy oftelecommunications. In that regard, however, can theconditions under which the Federal Constitutional



23

Court has developed under Article 2 para 1 inconjunction with Article 1 paragraph 1 GG,transferred to a large extent on the more specificguarantee of Article 10 of the Basic Law (seeBVerfGE 100, 313 <358 f.>).

1922nd a) in § 113a paragraph 1 TKG imposed onservice providers of telecommunications traffic dataretention interferes with telecommunications secrecy.

This is the case for the retention obligations inrespect to telecommunications services pursuant to §113a para 2-5 Telecommunications Act and inconnection herewith pursuant to § 113a para 6 and 7of the Act. The extent to give the records to ascertainwhether, when, where and how often taken betweenwhich telecommunications connections, or to beincorporated has been tried. This particularly appliesto the storage of data services to the electronic mailpursuant to § 113a para 3 TKG whose confidentialityis also protected by Article 10 paragraph 1 GG (seeBVerfGE 113, 348 <383>, 120, 274 < 307>). Thatcan intercept e-mails technically easy changes totheir confidential nature and its need to protectanything. An interference with Article 10 paragraph 1GG reasons for the storage of data relating to theInternet pursuant to § 113a para 4 the Act. While theInternet allows not only the admission of individualcommunications, come under the protection oftelecommunications secrecy, but also to participate inmass communication. Since a distinction betweenindividual and mass without the protection of thefundamental contrary connection to the content ofeach transmitted information is not possible is to seealready in the storage of the Internet as such datarelating to an intervention, even if data on theaccessed web pages not included (see Gusy, in: v.

Mangoldt / Klein / Starck, GG, Volume 1, 5th edition2005, Article 10 para. 44; Hermes, in: Dreier, GG,Volume 1, 2nd edition 2004, Article 10 para. 39).

193The quality of the intervention TKG § 113a is notcalled into question that the storage required by thisrule is not executed by the state itself, but by privateservice providers. For these are taken only asassistants to do the job by state authorities tocomplete. TKG § 113a, the privatetelecommunications companies to store data requiredsolely for the performance of work by state agencies

for purposes of law enforcement, security andcompliance intelligence tasks according to § 113bAct. It assigns the state associated with the storage offundamental effect on directly, without thespeicherungspflichtigen company so far remains ascope for action, and the data to be registered so thatlegitimate requests for information public authoritiescan be met without delay according to § 113a para 9Act. Under these conditions, the storage of the data islegally attributable to the legislature as a direct

interference with Article 10 paragraph 1 GG (seeBVerfGE 107, 299 <313 f.>).

194b) violations of basic rights in Article 10 paragraph 1GG are also in the arrangements for datatransmission in a sentence a sentence of § 113b Act.Although this provision opens in itself does not usethe stored data according to § 113a TKG, but refersto another law to be created specifically request

standards. However, it is the fundamental provisionmay be used for what purposes the data. You respectthe free telecommunications companies from itsaddition in applicable confidentiality. That the dataultimately used only in the final graded mesh of rulesat various levels of their standard set of rules will notalter the fact that the definition of the uses andpermission to use part of the data transmissionscheme and the extent interference nature. Again, itis irrelevant that § 113b TKG transfers the datarelates to the part of private service providers. Theproposed transfer is based on a legal regime andthus directly to an act of grundrechtsgebundenenunder Article 1 paragraph 3 GG public authority is asovereign arrangement in advance case and made toauthorities. It is thus legally regarded as aninterference of the state.

195c) any interference with Article 10 paragraph 1 GGalso justified a sentence of § 113b sentence 2 inconjunction with § 113 paragraph 1 TKG. It allowsauthorities by service information on inventory andcustomer data in accordance with § § 95, 111Telecommunications Act require that serviceproviders can only use the after § 113a para 4 TKGidentify stored data. Apart from the question of

whether and to what extent general information inaccordance with the Act § 113 is an interference withArticle 10 paragraph 1 GG or whether so far only inprinciple the right to informational self-determinationunder Article 2 para 1 in conjunction with Article 1,para . 1 GG is relevant is, at least for informationpursuant to § 113b sentence 1 sentence 2, § 113para 1 affirmative TKG an interference withtelecommunications secrecy under Article 10paragraph 1 GG. For it is here the use of storedaccording to § 113a TKG and regulated so thatthrough their impact on Article 10 paragraph 1 GGacquired data. Each subsequent use of data that

were once collected in the form of an interferencewith Article 10 paragraph 1 GG is always to live up tothis fundamental right (see BVerfGE 100, 313 <359>,110, 33 <68 f.>; 113, 348 <365>). Again, it can notget out that this is not legally required use by thepublic sector itself, but - in fulfillment of the request -through private providers.

196d) any interference with Article 10 paragraph 1 GGeventually founded § 100g Code of Criminal



24

Procedure. It enables law enforcement agencies, thestored according to § 113a of theTelecommunications Act data can be transmitted tothe storage and obligated to use. § 100g para 1sentence 1 Code of Criminal Procedure, and evenmakes the use of this power grab as acts of publicviolence, therefore, also in the scope of Article 10paragraph 1 GG.

I I I .

197Meet formally with the challenged provisions are noobjections. They satisfy the statutory reservation ofArticle 10 paragraph 2 sentence 1 GG, and arecovered by federal jurisdiction.

1981st Restrictions on telecommunications secrecy maybe arranged only on the basis of a law under Article10 paragraph 2 sentence 1 GG. No doubt be subjectto the extent initially TKG § 113b and § 100g Code ofCriminal Procedure, which - will, where appropriate,in conjunction with other regulations - a legal basis forthe adoption-case arrangements, under which theaccess to the data. Constitutionally unobjectionableso far is also § 113a TKG, which for the storage ofthe data does not refer to instructions on specificcases, but this immediately imposes itself. Article 10paragraph 2 sentence 1 GG restrictions ontelecommunications secrecy is also directly by lawdoes not prevent (see BVerfGE 85, 386 <396 et seq).

1992nd The federal government does not lack a

legislative powers. , § § 113a, 113b TKG find theircompetence basis in Article 73 paragraph 1 GG No 7,§ 100g Code of Criminal Procedure are found inArticle 74 paragraph 1 No. 1, Article 72 para GG first

200Article 73 para 1 No 7 GG entitled immediately butonly to regulate the technical side of creating atelecommunications infrastructure and informationtransmission by means of telecommunicationssystems. Standard covers are not accepted by therules, which are addressed to the transmitted contentor the nature of the use of telecommunications (see

BVerfGE 113, 348 <368>, 114, 371, <385>) andabout one interception for the purpose of obtaininginformation providing for duties of law enforcement orsecurity. Such regulations are in relation to thelegislative respectively attributable to the legal field,for the purposes of the monitoring is done (seeBVerfGE 113, 348 <368>).

201, § § 113a and 113b of the Act are the power toregulate the telecommunications law, however, also

detected as part of the Data Protection Act hereby tobe connected by virtue of material connection.Absence of an express conferral is the right of privacyin principle the responsibility of the countries. Afederal responsibility for the scheme exists by virtueof material connection, however, insofar as thefederal government on legislation assigned to him amatter regulate verständigerweise can not, withoutthe data protection provisions be adjusted too (cf.BVerfGE 3, 407 <421>, 98, 265 <299> , 106, 62

<115>, 110, 33 <48>; established case-law, privacylaw, see Simitis, in: Simitis, BDSG, 6th edition, 2006,§ 1 para. 4). This is for § § 113a, 113b of the Actcase. These are related to the provisions of theTelecommunications Act on data protection andnormalized in reference to the regulation of thetechnical conditions of the transmission of informationto be observed in each of the requirements fordealing with the provision of telecommunicationsservices produced or processed data. They tie indirectly to those situations that fall within the scope oflegislation matter of telecommunications. Because ofthis close link between the technical transfer processand the resulting data can provide the necessary dataprotection scheme being used only in a uniform madeby the federal legislature has the power to regulatethe transmission process. To do otherwise risks aninconsistency causing disintegration of the technicaland data protection regulations for data processing.Accordingly, the Telecommunications Act, in additionto the provisions of § § 113a and 113bTelecommunications Act and the secrecy oftelecommunications in § § 88 ff TKG also in § § 91-107 TKG extensive area-specific data protectionregulations, which kompetenzielle legality before - notapparently been - was seriously in doubt.

202The range for the federal government can take on thisresponsibility basis of the provisions that arenecessary to control this basic right of data usage. Inparticular it may include clauses that are necessary toensure that the Act provided for in § 113 a datastorage and transmission of data to law enforcementand security agencies and intelligence services andtheir use for the communication of information under§ 113 TKG the fundamental rights requirements ofArticle 10 para . meet a GG. Since requireintervention in Article 10 paragraph 1 GG, that itspurpose is intended area specific, precise and

normenklar (cf. BVerfGE 100, 313 <359 f.>; 110, 33<53>; 115, 320 <365>; 118 , 168 <187 f.>), thisincludes the competence to sector-specific, preciseand normenklaren scheme of the purpose of storage.The legislative powers of the Federal sufficient in thisregard but only as far as is necessary, according todata protection considerations and the items relatedto constitutional requirements. The authorizations todata retrieval itself can not support the federalgovernment, therefore, on Article 73 para 1 No 7 GG.



25

He needs for one's own competence permit or thedecision must be left to inform the countries.

203§ § 113a, 113b TKG take the bill in principle. Theylimit themselves to creating obligations by storing andtransmission schemes, the conditions for agovernment access to data. The filling of contrastremains left to its own rules for data retrieval. Withoutprejudice to the substantive question whether the

federal government the uses this has sufficientlylimited in scope (see below CV VI 5 and 3 b), areagainst this vocational colleges to raise no objections.

IV

204Material, are unconstitutional interference withtelecommunications secrecy if they are to servelegitimate public purposes and, moreover, satisfy theprinciple of proportionality (see BVerfGE 100, 313<359>), that is, to achieve the purposes ofappropriate, necessary and reasonable (see BVerfGE109, 279 <335 et seq, 115, 320 <345>, 118, 168<193>, 120, 274 <318 f.>; established case-law).

205A six-month retention of telecommunications trafficanlasslose qualified for uses in connection with lawenforcement, security and the role of intelligence, asis the § § 113a, 113b arranged TKG, then with Article10 of the Basic Law is not absolutely incompatible.The legislature may pursue such a scheme legitimatepurposes for the attainment of such storage in thesense of the proportionality principle is appropriate

and necessary. One such store is lacking in terms ofproportionality in the strict sense, not in advance ofany justification capability. In one embodiment, theweight of the specific inherent in this procedure takessufficient account unterfällt not already a anlasslosestorage of telecommunications traffic, as such, thestrict prohibition of storage of data on stocks in the

jurisprudence of the Constitutional Court (seeBVerfGE 65, 1 <46 f.>, 115, 320 <350>, 118, 168<187>).

2061st The more effective law enforcement, security and

the fulfillment of the tasks of the intelligence servicesare legitimate purposes that an intervention can inprinciple justify the secrecy of telecommunications(see BVerfGE 100, 313 <373, 383 f.>, 107, 299<316>; 109 , 279 <336>, 115, 320 <345>). It is anillegitimate, the principle of freedom of Article 10paragraph 1 GG self-transcending objective is notalready in it, should the communication traffic to besecured anlasslos precaution. Article 10 paragraph 1GG does not prohibit any precautionary collection andstorage of data at all, but protect against an

unreasonable design of such data collection and, inthis particular against boundless stated end. Is strictlyprohibited only the storage of personal data to beretained, vague and not definable purposes (seeBVerfGE 65, 1 <46>, 100, 313 <360>). Aprecautionary anlasslose data storage is onlypermitted in exceptional cases. It is subject to termsof their justification, and in its design, particularly inrelation to the proposed uses, particularly strictrequirements.

2072nd A precautionary anlasslose retention oftelecommunications traffic data for later transmissionto the event-responsible for law enforcement orsecurity authorities or to the intelligence may view thelegislature to achieve its objectives as appropriate. Itwill thus create opportunities to raise awareness thatthere were usually not given the increasingimportance of telecommunications to the preparationand commission of crimes in many cases of success.It is irrelevant whether the regulations created by thelegislator will be able to reconstruct fully alltelecommunications links. Although ensure such datamay not mean that all communication lines reliablyspecific port workers may be assigned, and somecriminals to store through the use of hotspots, internetcafes, international Internet telephony services andundermined under false names registered prepaidmobile phones can, this can be the suitability of a willnot oppose such legislation. This does not requirethat the legislative objective is actually achieved ineach individual case, but merely requires that thepurpose of achieving is encouraged (see BVerfGE63, 88 <115>, 67, 157 <175>, 96, 10 <23>, 103, 293<307>).

2083rd The legislature may judge a six-month retentionof telecommunications traffic as necessary. Lessrestrictive means to enable as far-reachingawareness campaigns, are not apparent. A similarlyeffective educational opportunity lies not in particularin the so-called Quick-freezing procedure is orderedwhen the place of the anlasslos-general retention oftelecommunications data, a storage only in individualcases and only on the date on which this exampledue to a certain suspicion of concrete occasionexists. Such a process can capture the data from theperiod before the order of their storage, only if they

are still present, is not as effective as continuousstorage, which ensures the presence of a completedata set for the last six months.

2094th A six-month retention of telecommunicationstraffic in one as in § 113a TKG extent provided inadvance is not disproportionate in the narrow sense.

210



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a) However, it is in such a store is a very seriousengagement with a range as it's legal does not knowso far: It covers the whole six months, virtually alltelecommunications traffic data of all citizens withoutany connection to one attributable reprehensibleconduct, a - even abstract - dangerous or otherwise aqualifying situation. The storage refers to everydayaction, in everyday life and fundamental forparticipation in social life in the modern world is nolonger dispensable. Basically, any form of

telecommunications is in principle excluded from thestorage. While the system can result in occasionalgaps, which prevent each and everytelecommunications connection can be reconstructedindividualizing, how might when using hotspots,confusing private networks or service providers innon-European countries. A regular alternative to thecitizen, this opens up is not. The legislature tried but,in principle, capture all the communication lines sothat users can be identified widely as possible.

211The strength of the data is extensive. Depending onthe use of telecommunications services from thepersons concerned have already from the data itself -to win and even if they serve as starting points forfurther investigation - a deep insight into the socialenvironment and the individual activities of everycitizen. It is true that a telecommunications trafficdata, as provided in § 113a Telecommunications Act,only the connection data (time, duration, and involvedconnections - detained for mobile telephony - thesite), but also the content of communication. Fromthese data do, however, if a comprehensive andautomated analysis to draw in the privacy of thecontents spilling conclusions. Recipients (whosemembership of certain occupational groups,

institutions or interest groups or the services theyprovide), data, time and location of telephoneconversations allow when they are observed over alonger period, in combination, detailed statements onsocial or political affiliations, and personalpreferences , tendencies and weaknesses of thosewhose connection to be evaluated. There is noconfidentiality protection being required. Dependingon the use of telecommunications and the future inincreasing density, such a storage enable thecreation of meaningful personal and motion profilesvirtually every citizen. In terms of groups andassociations, the data also may allow the detection of

internal control structures and decision processes.212A storage that are justified in principle, allows suchuses and to allow in certain cases, a seriousinterference. Of weight here is also that,independently of much of whatever controlledembodiment of the data use increases the risk ofcitizens that are the subject of further investigation,without having even given rise to it. It ranges from, forexample, at a bad time in a particular cell or had been

contacted by a particular person to be, to be exposedto a large extent to be under investigation andstatement printing. The abuses associated with suchdata, exacerbate the stressful effects. This isespecially true because of the wide variety of privateproviders, where the telecommunications data to bestored. have already given the number ofSpeicherungsverpflichteten is the number of thosebig, the have access to such data and have. Sincethe storage requirement mitbetrifft smaller service

providers, the backup comes from abuse regardlessof all possible and necessary efforts of legislators inview of their performance to structural limitations.This is reinforced by the fact that the requirements toassume the data management and transmission ofdata to the authorities a high degree of technicalmastery and sophisticated software, which combinesan inherent risk of vulnerabilities and the risk ofmanipulation by interested third parties. Specialattention given to storage of telecommunications dataremains the fact that they themselves and theproposed use of the stored data by those concernednot observed directly, but also capture compoundswhich are included under confidentiality expectations.This anlasslose the retention of communication trafficis likely to evoke a feeling of vague threateningBeobachtetseins that can affect the impartial exerciseof fundamental rights in many areas.

213b) Despite the extraordinary spread and theconsequent interference with their weight is thelegislator to introduce a six-month storagerequirement, as provided in § 113a TKG, absolutelynot constitutionally prohibited. However, itcorresponds to the case law of the ConstitutionalCourt that the state has a collection of personal data

to be retained vague or not yet determinablepurposes is strictly prohibited constitutionally (seeBVerfGE 65, 1 <46>, 100, 313 <360>, 115, 320<350>, 118, 168 <187>). To advance such aprohibited form of data collection is a precautionanlasslosen retention of telecommunications trafficdata is not in every case. If they are for specificpurposes, such storage can meet in an integratedsurgery adequate legal arrangements (see below V)but also the requirements of proportionality in thestrict sense.

214

aa) A crucial factor is this, first, that the proposedretention of telecommunications traffic is carried outnot directly by the state but by a commitment from theprivate service provider. The data will be merged sothat the storage has not itself, but remain divided onmany individual companies and are not directlyapplicable to the state as a whole are available. Thishas in particular, which is to ensure that thearrangements and technical arrangements, no directaccess to the data. The retrieval of data by stateagencies shall be made only in a second step, and



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now as circumstances require closer to legallyestablished criteria. The design of the can for retrievaland further use of the stored data while empoweringprovisions ensure that the storage is not too vague ornot yet identifiable purposes. It can and must beguaranteed in the arrangement of such a retentionrequirement that an actual acknowledgment and useof the data limited in normenklarer form in a way isthat the weight of the extensive data collection intoaccount, and the retrieval and the actual use of data

to the strictly necessary part of data collection islimited. The separation of storage and retrievalpromotes structurally at the same time - to furtherrefinement by legal guarantee of amounts due -transparency and control of data usage.

215bb) A six-month retention of telecommunicationstraffic data points not already out of themselves, theprinciple of Article 10 paragraph 1 GG as such, itviolates neither the core human dignity (Article 1paragraph 1 GG) nor its essential content (Art. 19,para . 2 GG). It remains, despite its extraordinarybreadth still limited. Thus the content oftelecommunications is omitted from the traffic on thelimited storage. It also remains the storage timelimited in time. Although a storage period of sixmonths, given the scale and significance of the datastored very long and is located at the upper limit ofwhat is under rechtfertigungsfähig proportionalityconsiderations. After its expiry, the citizens could relyon their data - if they were not retrieved fromexceptionally weighty occasion - will be deleted andno one is reconstructed.

216cc) A retention of telecommunications traffic data for

six months presents itself not as a measure thatwould have to censuses of communication oractivities of the citizens generally created. Rather, itlinks in a permanent way is still limited to theparticular importance of telecommunications in themodern world and to respond to the specific riskpotential associated with this. The newtelecommunication means to overcome time andspace in a manner incomparable with other forms ofcommunication and in principle to the exclusion ofpublic perception. They facilitate communication, andwith it the covert action of offenders and it alsoscattered groups of a few allow people to come

together and work together effectively. By virtuallyresistance-free communication is a pooling ofknowledge, action-taking and criminal energy ispossible, preferring the security and law enforcementon new tasks. Some crimes take place immediatelywith the help of new technology. Forming part of aconglomerate of communicating technically exist onlycomputers and computer networks such activities wellbeyond the observation. At the same time they canestablish - through attacks on the telecommunicationsof third parties - also new dangers. A reconstruction

particularly the telecommunications links are essentialfor effective law enforcement and security is ofparticular importance.

217In addition, there are terms of telecommunicationsdata for lack of public visibility and no social memory,which is just one area allowed to reconstruct pastevents on the basis of random memory:telecommunications data is either removed, and then

completely lost or saved and are therefore fullyavailable. Therefore, should the legislature to decidehow far such data to delete or save are to make abalance of interests and consider the interests ofstate to task performance. Here it can also include inits considerations that the distribution of certaincontractual arrangements of the telecommunicationsservice providers (such as the increase in flat rates)for application of a strict requirement for deletion oftelecommunications traffic, which are not required forcontract implementation, reduces the availability ofsuch data. There too, can support the precautionarysaving of telecommunications traffic on factors in thecharacteristics of modern telecommunications have aspecific reason.

218Conversely, should the retention oftelecommunications traffic will not be understood as astep towards a legislation that was aimed at apossible comprehensive precautionary storage of allfor the prosecution or threat prevention useful data.Such legislation would be inconsistent regardless ofthe format of the use of schemes, from the start withthe Constitution. The constitutional safety precautionanlasslosen a storage of the communication trafficrequires, rather, that this remains an exception. It

may not even lead in conjunction with other existingfiles reconstructability virtually all activities of citizens.Relevant for the justification of such storage capacityis therefore in particular that they are not donedirectly by government bodies, not covering thecontent of communication and that the store is calledby its customers by commercial Internet serviceprovider prohibited. The introduction oftelecommunications traffic data can therefore notserve as a model for the creation of further precautionoccasion wireless data collection, but forces thelegislature to consider new storage obligations orprivileges in view of the totality of the various existing

data collections to greater restraint. may be that thefreedom of exercise of the citizens not coveredcompletely and registered on the constitutionalidentity of the Federal Republic of Germany (see, partof the Basic Law Identity reserved ConstitutionalCourt, Judgement of the Second Senate of 30 June2009-2 BvE 2 / 08, etc. -, juris, para. 240), for theobservance of which the Federal Republic must beused in European and international contexts. By aprecautionary saving of telecommunications traffic,the scope for further data collection anlasslose also



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about the way the European Union significantlyreduced.

219dd) In a six-month retention of telecommunicationstraffic in which the legislature is in § 113a para 1-8TKG extent provided under the presentcircumstances is not disproportionate from the outset.For their safety, however, is constitutional, providedthat the design of storage and use of the specific

weight of such data storage due consideration.

V.

220The design of a precautionary telecommunicationstraffic data, as provided in § 113a TKG subject tospecific constitutional requirements, particularly withregard to data security, the extent of the use of data,transparency and legal protection. Only whensufficiently advanced in this regard and normenklarearrangements are made, the interest in such astorage operation is relatively proper.

2211st A recording of telecommunications traffic in thescope of § 113a of the Act requires statutoryguarantee of a high standard of data security.

222Given the scale and potential significance of thecreated with such databases is storing the data forthe proportionality of the challenged provisions ofgreat importance. This is especially true because thedata are stored in private service providers who act

under the conditions of efficiency and cost pressuresand thus have limited incentives to ensure datasecurity. They deal in principle and private-are notbound by specific duties. At the same time the risk ofillegal access to data is large because, in view of theirmultiple significance can be attractive for a variety ofstakeholders. Commandments is thus a particularlyhigh standard of security that goes beyond thegenerally constitutionally required measure for thedata retention of telecommunications. Suchrequirements for data security be paid to both thestorage of data and for providing it, as it calls foreffective safeguards to ensure the erasure of the

data.

223In statements made at the hearing and in writtencomments submitted to this procedure from a widerange of expert page of instruments to increase thedata has been presented. Called as a separatestorage under § 113a of the Act were to be stored onphysically separate and decoupled from the Internetcomputers, connected by asymmetrical cryptographicencryption under separate custody of the keys, the

specification of the four-eye principle for accessingthe data with advanced methods for authentication foraccess to the keys, the audit logging of access todata and their deletion and the use of automatederror correction method and plausibility. In addition tosuch technology-oriented instruments and thecreation of information in data breaches, theintroduction of strict liability or a strengthening ofcompensation claims has been called for moraldamages, in order to create incentives for the

implementation of an effective data protection.224The Constitution does not purport to detail, which areoffered Sicherheitsmaßgaben in detail. The resultmust, however, a standard to ensure the guaranteedunder specific regard to the characteristics of jobscreated by a precautionary telecommunications datastorage data sets a particularly high level of security.This includes ensuring that this standard - forexample, using figures based on ordinary law as thestate of the art (see Heibey, in: Rossnagel, manualdata protection law, 2003, p. 575, para. 19, p. 598,para. 145; Tinnefeld / Ehrmann / Gerling, Introductionto the Data Protection Law, 4th edition 2005, p. 628) -on the development of the technical discussionoriented and continuously absorbs new knowledgeand insights. Accordingly, to provide that thespeicherpflichtigen business to adapt - for exampleon the basis of periodic refreshing security concepts -their actions therein verifiable. The potential dangerarising from the databases in question are allowed,not to impose the security requirements described ina free assessment of general economic factors. If thelegislature a comprehensive retention oftelecommunications traffic invariably required, it isone of the necessary requirements that covered

entities can not only fulfill their duty to store, but alsothe corresponding requirements for data security.Building on the expert opinions, it is suggested that,in principle, in the current state of discussion, aseparate storage of the data, a sophisticatedencryption, a secure access regime, using some ofthe four-eye principle and an audit logging must bemet to ensure safety the data to provideconstitutionally sufficient.

225Necessary legal arrangements that such a particularlyhigh standard of security in that person at least

pretend the merits normenklar and binding. It is up tothe legislature, the technical specification of thepredetermined scale trust regulatory authorities. Thelegislature has, however, while ensuring that thedecision not on the type and level of protection to betaken ultimately uncontrolled in the hands of therespective telecommunications provider. Thewrongful requirements are differentiated by eitherpretending technical regulations - may standardgraded on different levels - or in general-a generalway and then flesh out in a transparent manner by



29

binding individual decisions of regulators to theindividual companies. provided constitutionallycontinue to be transparent to the public scrutiny withthe involvement of the independent data (seeBVerfGE 65, 1 <46>) and a balanced system ofsanctions, which also attaches to breaches of datasecurity a reasonable weight.

2262nd A retention of telecommunications traffic, as

provided in § 113a TKG is to continue to advancelegal regulations on the use of this data. The relativeconfiguration of the usage rules not only decide onthe constitutionality of an overriding provisionsestablishing itself, but acts on the constitutionality ofthe already stored back as such. According to the

jurisprudence of the Constitutional Court, theconditions for data use and their scope in the relevantlegal principles are more closely restricted, theheavier the weight of the storage lying intervention.Reason, purpose and extent of the surgery and thecorresponding interference levels are regulated bythe legislature sector-specific, precise andnormenklar (see BVerfGE 100, 313 <359 f.>, 110, 33<53>, 113, 29 <51> , 113, 348 <375>, 115, 166<191>, 115, 320 <365>, 118, 168 <186 f.>).

227Use of systematic saving by anlasslos virtually alltraffic Telecommunications stocks gained dataaccordingly be subject especially stringentrequirements. In particular, this is not to the sameextent constitutionally permissible, such as the use oftelecommunications traffic, the service provider,depending on the particular operational andcontractual circumstances - from the customer maybe influenced in part - save to § 96 TKG. Given the

inevitability of, completeness, and thus increasedrelevance of the precautionary systematicallycollected over six months of their traffic demand hasa much greater weight. As an analysis of these datadeep into the private life of penetrating conclusionsand possibly detailed personality makes and motionprofiles, can so far not be assumed without furtherassume that the use of this data generally lessimportant than a content-based telecommunications(to query the old law, see . BVerfGE 107, 299 <322>).Rather, the use of such data can only be regarded asproportionate if it is particularly high-level publicaffairs. The use of the data is therefore paramount for

the Protection of Legal important tasks intoconsideration, that is imposed for crimes that threatenthe outstanding important legal rights or to preventthreats to such legal rights.

228a) For the prosecution, it follows that a retrieval of thedata at least the reasonable suspicion presupposescertain facts by a serious crime. What crimes shouldbe covered accordingly, has the legislature finallyestablished with the obligation to store data. He

comes here to an area of discretion. He can eitherdraw on existing catalog or create a separate catalog,about the offenses for which the communicationtraffic are particularly important to capture. Thequalification of a crime as serious but will be in thecriminal law provisions - in particular about whosepenalty - finding a objectified expression (seeBVerfGE 109, 279 <343 ff, especially 347 f.>). Ageneral clause or only the reference to major criminaloffenses ranging from no other hand.

229About the abstract definition of a relevant crimecatalog addition, the legislature must ensure thatrecourse to the precautionary storedtelecommunications traffic is allowed only if in casethe wanted criminal offense seriousness (seeBVerfGE 121, 1 <26>; to serious criminal offensessignificance see BVerfGE 107, 299 <322>;particularly serious crime within the meaning of Article13 paragraph 3 GG see BVerfGE 109, 279 <346>)and the use of the data is proportionate.

230b) The security is to use the data in question to limitequally effective. to open the data access byreference to catalogs of certain crimes, the preventionof which is to serve the use of data (see BVerfGE122, 120 <142>), is not an appropriate controltechnology. She takes the requirements for thedegree of legal protection risks its clarity and leads touncertainties in the event where even the offensesthemselves mere preparatory acts and threats oflegal protection under punishment. Instead, offer totake the law directly relating to the legal rights to

justify their use of these data is to protect, and theintensity of this threat of legal protection that must be

achieved as a threshold for intervention of this. Sucha rule reflects the character of the security as of legalprotection and guarantees a direct connection to theultimate goal, is to justify the encroachment on basicrights.

231The balance between the weight leads to in thestorage and use of data underlying the interventionand the importance of effective security to ensure thata release of precaution saved telecommunicationstraffic only to counter threats to life or liberty of aperson for the stock or the security of the Federation

or a country or may be permitted to defend against acommon threat (see BVerfGE 122, 120 <141 et seq).The legal basis for authority in this regard must be atleast actual evidence of a concrete threat to theprotected legal interests require. This requirementmeans that sufficient general assumptions orempirical propositions not to justify access to thedata. Rather, certain facts must be established thatcarry the prognosis of a concrete danger. It requiresthat regard a situation in which, in case there is areasonable probability that in the foreseeable future



30

without government intervention caused a damage tothe protected goods of the standard by certainpersons. The relevant observations of the Senateregarding the requirements for online searches applyhere accordingly (see BVerfGE 120, 274 <328 f.>).The real danger is determined by three criteria: theindividual case, the proximity of the transformation ofa hazard in an injury, and the reference to individualpersons as a polluter. The query of data stored as aprecaution, however, can already be justified if they

are not yet possible to determine with reasonableprobability that the risk occurs even in the near future,if certain facts point to an individual in imminentdanger for a supremely important right. The factshave to admit to a conclusion as to the at least one ofits kind for concrete and time-foreseeable event, onthe other, that certain persons will be involved, atleast as much about their identity is known that themeasure is targeted against them and to them can beconcentrated. In contrast to the weight of thefundamental intervention is not sufficiently taken intoaccount when the actual interference event is stilllargely moved in the advance of a not foreseeable indetail specific threat to the protected goods of thestandard.

232c) The constitutional requirements for the use of thedata security apply to all appropriations interventionwith preventive purpose. They are thus also for theuse of information by the intelligence services. Sincethe interference is through the intervention in all thesecases for the parties concerned the same, there is noreason to regard these requirementsbehördenbezogenen differentiations, such asbetween police and other preventative work withauthorities responsible authorities such as the

Constitution. That police and Constitution authoritiesvarious functions and powers have and make in thefollow-up with different depth of intervention can be,for the weighting of the use of precautionary area-andlong-term stored telecommunications traffic generallyirrelevant (see BVerfGE 120, 274 <329 f.>) . Whileappropriations can discriminate between the variousauthorities with preventive tasks before theConstitution endure (see BVerfGE 100, 313 <383>,120, 274 <330>). However, the legislature is also inthe regulation of various powers of security agencies,whose task is to advance education, subject to theconstitutional requirements stemming from the

proportionality principle (see BVerfGE 120, 274 <330f.>). These result in this case to provide that both interms of legally protected rights as well as to thethreshold of intervention to be considered this specialdemands on the data are used.

233There is no reason why these requirements shouldnot apply for the completion of the intelligence. Whilelimiting the role of intelligence in principle to thecollection of information for informing the government.

This reduces the weight of the intervention so far,when it connects to the individual citizens about thedanger of being observed is not beyond the danger ofcar related thereto further action. At the same time isreduced thereby, but also the weight to justify suchintervention, but by mere information the governmentcan not legally protected injury to be prevented. Thisis possible only by action taken by the competentsecurity authorities, the constitutional limitations onthe use of data should not be undermined by further

use of powers in the run. A particular burden to thecitizens impact of such interventions is, moreover,that not only the respective intervention in the secrecyof telecommunications, as such, covered generallyhappens, but practically carried the entire activities ofthe intelligence secret. Powers of such servicesnationwide as a precaution for use of storedcommunication traffic to promote a feeling ofuncontrollable being observed in a particular mannerand develop sustainable intimidation effects on thefreedom of perception.

234The Senate does not deny that this would eliminatethe use of the stored communication traffic as aprecaution on the part of the intelligence services inmany cases. However, this is in the nature of theirduties as the run information and does not constitutea constitutionally acceptable reason for thedrawbacks of the proportionality principle resultingconditions for engagement of the present species(see BVerfGE 120, 274 <331>).

235be d) The limitation of the data used for particularpurposes must be ensured for the use of data forretrieval and transmission to the authorities and

retrieving flanked procedurally. It is to ensure by lawthat the data will be evaluated immediately afterdelivery and, if they are irrelevant for purposes of thesurvey, are deleted (see BVerfGE 100, 313 <387 f.>).Moreover, it is necessary to provide that the data willbe destroyed after it for the specified purposes are nolonger necessary, and that purpose a log is produced(see BVerfGE 100, 313 <362>, 113, 29 <58>).

236The telecommunications traffic lose their protectionmediated by Article 10 GG is not the fact that alreadyhas a government agency becomes aware of them.

240a) The conditions of the constitutionally acceptableuse of data obtained through such storage conditionsfall within the transparency. As far as possible mustbe done using the data open. Otherwise, it alwaysrequires at least a subsequent notification ofindividuals. Failing this exceptionally well, requires a

judicial decision concerning non.

241



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aa) A precautionary anlasslose retention of alltelecommunications traffic data for six months is onereason such a serious intervention, because it cancause a feeling of perpetual Überwachtwerdens theyallowed in an unpredictable way deep insights intothe private lives without the use of the data for thecitizens is directly felt or seen. Individuals do notknow what know what state authority over him, but Iknow that the authorities many, even highly individualcan know about him.

242The legislature needs to diffuse threat that canreceive the data thereby, absorb through effectivetransparency rules. Rules for informing the personsconcerned or of use of data collection are generally ofthe fundamental instruments of data protection basicrights (see BVerfGE 100, 313 <361>, 109, 279 <363f.>, 118, 168 <207 f.>; 120, 351 <361 f.>). The use ofthe extensive and varied collections of meaningfuldata precaution anlasslosen telecommunicationstraffic data storage requirements are placed high sofar. You have to take the task of reducing to one fromthe ignorance of the actual relevance of the dataresulting threatening, unsettling speculation counterand to establish the subjects the opportunity to putsuch measures in the public debate. On the otherhand, such requirements also from the imperative ofeffective judicial protection under Article 10 paragraph1 GG in conjunction with Article 19 paragraph 4 GGare derived. Without the attention of those affectedneither illegality of the use of administrative data norany rights for cancellation, rectification or satisfactionclaim (see BVerfGE 100, 313 <361>, 109, 279<363>, 118, 168 <207 f.>; 120 , 351 <361>).

243

bb) To the requirements of transparency is one of theprinciple of openness of the collection and use ofpersonal data. The use of the data without theknowledge of the person concerned is constitutionallypermissible only if it is otherwise frustrate the purposeof the investigation, which is used for data retrieval.For the security and the exercise of the functions ofthe intelligence services, the legislature must acceptthis principle. In contrast, comes in the context of lawenforcement also an open collection and use of thedata into account (see § 33 para 3 and 4, Code ofCriminal Procedure). Investigative measures to behere in part carried out otherwise with regard to the

accused and in his presence (see, for example, § §102, 103, 106 Code of Criminal Procedure).Accordingly, the parties before the query or sendingits data to be notified in principle. A secret use of thedata may only be provided if it is arranged inindividual cases and judicial.

244As far as the use of data is done in secret, thelegislature has the duty to provide at least onesubsequent alert. This must ensure that those to

which a data query - whether as suspects, or thirdparties Polizeipflichtige - directly related, has put atleast in retrospect, in principle, are having.Exceptions may provide balance in the legislaturewith constitutionally protected legal interests of thirdparties. However, they are strictly necessary to thelimit (see BVerfGE 109, 279 <364>). Possibleexceptions to the notification obligations in connectionwith law enforcement, for example, if the knowledgewould result in breaching the secrecy of

telecommunications to the fact that this fails itspurpose if the notice can not be done without risk tolife and limb of a person or if their overriding interestsan affected person would hold, perhaps because ofthe notification of a measure which has had no furtherconsequences, the fundamental intervention wouldhave deepened (see BVerfGE 100, 313 <361>, 109,279 <364 et seq). If there are compelling reasonswhich also exclude a subsequent notification, this isto confirm a judicial and examine at regular intervals(see BVerfGE 109, 279 <367 f.>). Correspondingly, itrequires a refinement of the notification obligationsalso with regard to the use of data for securitypurposes or functions of the intelligence.

245not constitutionally necessary in contrast, are similarto strict notification requirements in relation to peoplewhose communication traffic were also detected onlyby chance and not even the focus of regulatory actionwere. Such party may exist in the analysis oftelecommunications traffic on a large scale, withoutthe short-term disclosure of their data leave traces orconsequences for the person concerned must have.A notification is to deepen them in case the surgeryrather (see BVerfGE 109, 279 <365>; BVerfGK 9, 62<81>). In these cases, a notification can be omitted in

principle even if the parties were not significantlyaffected by the measure and assume that they haveno interest in the alert. One requires judicialconfirmation of this decision consideration of it.

246b) The relative configuration of a precautionary savingthe communication traffic and their use requiresfurther ensuring an adequate and effective legalsanctions.

247aa) To ensure effective legal protection is a query or

submission of such data in principle, be placed undercourt reservation.

248According to the jurisprudence of the ConstitutionalCourt, may be constitutionally necessary preventativecontrol by an independent body with investigativeactions that cause a serious encroachment on basicrights. This is especially true if the fundamentaloperation in secret and is for the person concerned isnot directly visible (see BVerfGE 120, 274 <331>).



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For the query and transmission oftelecommunications traffic, this may be the case.Given the weight of the inherent in this procedure, thescope of the legislature reduced the effect that suchmeasures are generally placed under the reservationof a judicial order. Judges may, because of theirpersonal and material independence and its exclusivecommitment to the law the rights of the person incase the best and safest true (see BVerfGE 77, 1<51>, 103, 142 <151>, 120, 274 <332> ). An

exception applies under Article 10 paragraph 2sentence 2 Basic Law for the control of interventionsin the telecommunications freedom by the intelligenceservices. This can serve as a preventive judicialreview which - also specifically related to theparticular measure - review by a member appointedby the People's representative body or subsidiarybody effects (see BVerfGE 30, 1 <21>).

249The legislature has to connect to the commandmentof preventive judicial review in a specific andnormenklarer form with strict requirements on thecontent and the reasoning of the court order (seeBVerfGE 109, 279 <358 f.>). From this it also followsthe requirement of a sufficiently substantiated

justification and limitation of the query the desireddata, which allows the court only to exercise effectivecontrol (see BVerfGE 103, 142 <160 f.>). Only on thisbasis can and must be formed independently of theCourt ordering a verdict on whether the requesteduse of the data complies with the statutoryrequirements. In addition, careful examination of thetriggering conditions is including in particular thestatutory threshold for intervention. The order of thecourt decision must be justified in content. Moreover,the data to be transmitted in accordance with the

principle of proportionality should be indicatedsufficiently selective and in a clear way (see BVerfGE103, 142 <151>), so that service providers must notmake its own substantive examination. This may onlybe based on clear arrangements for transmitting therequired and justified.

250The effectiveness of control, it also means that thedata resulting from the arrangement of thetelecommunications company will be filtered asspeicherungsverpflichteten third party and transmittedto the authorities is not a direct access will be opened

to the data. In this way, the use of the data on theinteraction of different actors linked to each other andis thus involved in controlling decision-makingstructures.

251bb) From constitutionally necessary is also initiatingthe legal procedure for subsequent monitoring of theuse of the data. If an interested party prior to theoperation had no opportunity to put up in the courts

against the use of its telecommunications traffic to theweir is to address a judicial review to open later.

252cc) Finally, is a proportionate design requireseffective sanctions for violations. Would also seriouslyinjured as a result of the telecommunications secrecyremain unpunished, with the consequence that theprotection of personal rights, even if he had found inArticle 10 paragraph 1 GG is a particular expression,

would wither away, given the intangible nature of thislaw (see Federal Constitutional Court, decision of thefirst chamber of the First Senate of 11 November2009-1 BvR 2853/08 - Juris, para. 21; BGHZ 128, 1<15>), this would contradict the obligation of publicauthorities, which detail the development of hispersonality to allow (see BVerfGE 35, 202 <220 f.>,63, 131 <142 f.>; 96, 56 <64>) and to protect it fromthreats to privacy by third parties (see BVerfGE 73,118 <210>; 97, 125 <146>, 99, 185 <194f>; BVerfGK6, 144 <146>). This may be the case if improperlyobtained data should be widely used freely orunauthorized use of the data for lack of regularphysical damage would be without one of satisfactionof stakeholders serving compensation.

253The legislature has broad discretion in this respectbut one. In particular, it can take a look at the extentto which such arrangements fit into the overallscheme of criminal procedure law or under the liabilitylaw. In that regard, he must also consider that in theevent of violations of personal rights under applicablelaw already bans exploitation both on the basis of anassessment (see BVerfGE 34, 238 <248 et seq, 80,367 <375 f.>; 113, 29 <61 >; BVerfGK 9, 174 <196>;BGHSt 34, 397 <401>, 52, 110 <116>) and a liability

for material damage can be justified (see BVerfGE34, 269 <282, 285 f.>; BVerfGK 6, 144 <146 f.>;Federal Constitutional Court, decision of the firstchamber of the First Senate of 11 November 2009-1BvR 2853/08 - Juris, para. 21; BGHZ 128, 1 <12>).For the decision whether we need to sound morestringent regulations, it is therefore not preventedfrom observing, first, whether the specific gravity ofthe infringement of privacy, which in the unauthorizedacquisition or use of this is regularly in question aredata already on the basis of current the right of thelaw in the constitutionally required way from beingmet.

2544th Less stringent constitutional provisos apply aprecautionary measure only indirect use of the datastored in the form of official information regardingclaims against the service by the subscriber specificIP addresses that they have to identify with the use ofthe stored data. The creation of such an inquiry isindependent of limiting claims of legal or criminalProceeding catalogs total admissible as the queryand use of telecommunications traffic itself



33

255a) For information on the holders of certain IPaddresses to be used for the identification ofprecaution must be stored communication traffic mustnot be given by the otherwise constitutionally apply tothe use of such data very strict conditions.

256Of significance for this is the one that the authorities

themselves, no knowledge of the received data to bestored as a precaution. The authorities call in thecontext of such information from the claims do notprecautionary anlasslos stored data itself, but onlyreceive personal information about the holder of aparticular port, which was determined by the service,using this data. It remains the strength of the data isstrictly limited: the use of precautionary data aloneleads to the inquiry, which was declared underConnection Owner of an already known aboutotherwise determined IP address on the Internet. Aruling has its formal structure after a certain similarityto the query of the holder of a phone number. Itscognitive value remains circumstantial. Systematicfishing expeditions over a longer period, or thecreation of personality and movement profiles can notbe achieved solely on the basis of such information.

257Is relevant to the other, that such information is usedfor only a small portion of fixed from the outset ofdata, its storage could be arranged by themselveswith much lower requirements. A dynamic storageonly the necessary information for such Internet datato identify IP addresses would have a much lessstressful than the weight of almost complete retentionof data from all telecommunications links. The

combination of these factors it appears that apply tothe use of telecommunications traffic as a precautionsaved otherwise applicable requirements for suchinformation is not alike.

258b) However, the justification of administrative claimsinformation to identify IP addresses of considerableimportance. With it, the legislature has one of theconditions of communication on the Internet and limitsthe extent of their anonymity. On their basis, inconnection with the systematic storage of Internetdata to a large extent the identity of Internet users are

determined. Where can individuals who believethemselves harmed on the Internet, register theappropriate IP addresses and display or report todetermine the extent of the authority itself IPaddresses assigned to these specific subscribers,and the underlying communication processes areindividualized with considerable probability.

259The assignment can be an IP address to aConnection Owner of the weight also produces for the

person concerned, despite a certain similarity to theidentification of a telephone number not be equated.Telephone numbers are permanently assigned asidentifiers exchanged between users, so that asearch of the holder may also independent of specifictelecommunications acts. contrast, was one containsinformation about the Connection Owner of adynamic IP address is also needed in the informationused and by which that port from that IP address at aparticular time. In addition, the phone number to

private suppressed without difficulty, while the IPaddress can be disguised in principle only with theuse of anonymizing services. Also, the possiblerelevance of a query personality of the owner of an IPaddress other than the owner of a phone number:even the extent of her contacts, which are each madeby calling new website, it is more meaningful than aphone query. Also, the knowledge of a contact with awebsite to another substantive meaning: Since thecontent of Internet sites other than that in a phoneconversation spoken word electronically locked andlonger can be called again, can be with herreconstruct many reliable, with which the subject ofthe communicating set apart has. Theindividualization of the IP address as the "phonenumber of the Internet are" at the same timerevealing the content of communication. The force ofthe distinction between external telephone callconnection data and call content dissolves here.individualized If the visitor to a specific website usingthe information about an IP address, you know notonly who he had contact, but usually knows thecontents of the contact.

260Of course, conversely, an increased interest in theability to communication links in the Internet of legal

protection or to safeguard the legal system to assignthe respective actors. Given the increasingimportance of the Internet for the most diverse areasand processes of everyday life also increases the riskof its use for crimes and violations of law in a varietyof Art and the Internet can not form a legal vacuum.The ability of an individual assignment of Internetcontacts with violations of some significance istherefore legitimate for the legislature. Insofar assimilar information from the service under the currenttechnical conditions under which IP addresses mainly

just for the meeting ("dynamic") must be assigned,telecommunication traffic data are evaluated, thus

throwing this on any fundamental concerns. Nor canthe legislature to ensure reliable assignment of theseaddresses over time, the provision of the relevantdata or provide a high level of reliance on stored datais far from the service provider. It has a margin ofdiscretion here.

261c) Accordingly, should the legislature of suchinformation independent of limiting legal rights orcrimes catalogs for the prosecution of crimes allow for



34

the security and the performance of duties of theintelligence on the basis of the generalfachrechtlichen intervention appropriations (see Bock,in: Geppert / Piepenbrock / contactor / Schuster,Beck'scher comment to TKG, 3rd edition 2006, § 113para. 7; Graulich, in: Arndt / Fetzer / Scherer,Telecommunications Act, 2008, § 113 para. 8).Regarding the intervention thresholds, however,ensure that the information will not be caught out ofthe blue, but only upon a reasonable suspicion or

may be the beginning of a concrete danger to fact-case basis. The requirement of a based on factualevidence in the real risk is paid for the intelligenceservices as well as for all to respond to threats topublic order and safety authorities. The legal andfactual basis of appropriate information requestedmust be recorded. A judge must be reserved incontrast to similar information not be provided.

262The considerable weight of the interference of suchinformation allows not, however, these generally andunconditionally be allowed in order to monitor orprevent any irregularities. The removal of anonymityon the Internet requires at least a legal interestaffected, by the law and is otherwise a highlightedweight attached. This includes similar information forthe monitoring or prevention of offenses is notcomplete. It must be so far but in order - even in thecase - particularly important Offences act, which mustappoint the legislature explicitly.

263Also, there is no reason to withdraw for theidentification of IP addresses the principle oftransparency (see above CV 3). The personconcerned, who can go out in the rule about using the

Internet anonymously, has in principle the right toknow that and why this anonymity was lifted.Accordingly, the legislature has at least providenotification obligations as and when thus the purposeof the information will not be frustrated or otherwiseoverwhelming interests of third parties or the partiesthemselves do not allow this. As far as waiver ofnotice in accordance with relevant legal regulations,exceptionally, the reason is to make this record. Onerequires judicial confirmation of the waiver ofnotification is not in contrast.

264

5th The constitutionally required to ensure datasecurity, and a proportionality standard possiblenormenklaren limit the use of data is an integral partof the arrangement of the storage obligation andtherefore the obligation that imposes the obligationincumbent federal legislators. In contrast, theresponsibility is directed to the creation of callprovisions themselves and for the design of thetransparency and legal protections under therespective expertise.

265a) Where are to be settled in connection with theobligation of service to a precautionary anlasslosenretention of communication traffic data securityissues, this responsibility is an integral component ofthe storage requirement and the legal consequencesassociated herewith the federal government underArticle 73 para 1 No 7 GG . This, in addition to thearrangements for security of stored data, the rules arepart of the security of the transmission of data and

this case to ensure the protection of the trust relations(see above CV 1 and CV 2 e).

266The Federation is also responsible also for ensuringthe constitutional requirements of a relevant andsufficiently precise limitation of the uses of the data,to be pursued with the storage. The reason has tosave this irreducible in the constitutional context ofdata storage and use, in line with established caselaw of the Federal Constitutional Court: data mayadvance only on specific, sector specific, precise andnormenklar specified purposes, so that a reasonableassurance already in the storage, that the data beused only for purposes that justify the weight of datastorage. A lock can not be justified in the abstract, assuch, but only insofar as it serves sufficiently weighty,specifically designated purposes (see BVerfGE 65, 1<46>, 118, 168 <187 f.>). In contrast, it isinadmissible, regardless of such purposes to create apool of data on stocks, the use according to need andleave the political discretion of the subsequentdecision of various government bodies remains. Insuch a case, the constitutionality of the store couldlack of sufficiently predictable and limited purposes atthe time of lying in the store procedure not yet beassessed. Their significance for the citizens would be

neither predictable nor limited in accordance with theproportionality principle. This material combination ofstorage and use of the data as a key link betweenintervention and may also justify the interplay offederal and state governments are not broken. Thecompetence to provide this link grows, the federalgovernment under Article 73 para 1 No 7 GG virtuematerial connection (see III C 2).

267The restrictions to the federal government inconnection with the storage arrangementsaccordingly be taken to determine the qualifying

conditions for the use of data for purposes of lawenforcement, security, or threat prevention throughintelligence belongs to the developed above provisos.Again, the necessary regulations are to maintain theallocation for the further use of the data, particularly inthe form of identification and logging requirements.

268b) In contrast, the federal government depends on thearrangement of the storage requirement and theresponsibility not simply about whether and how



35

much may be made to the actual data in the contextof the purposes specified by him. The adoption ofrules that govern the data call themselves, is notfundamentally a federal matter, but depends on thegeneral legislative powers. Thereafter, theauthorization will not be to retrieve the data based onArticle 73 para 1 No 7 GG, but is based on each ofthose skills to create standards which determine thelegislation for the use of objective data with the tasks(see BVerfGE 113 , 348 <368>, 114, 371 <385>). In

the area of security and the role of intelligence,responsibility so widely among countries. Other thanensuring the constitutionally required limitation of theuses that must be regulated uno actu with the storagefor the data protection clamping of intervention and

justification, and may require more than just callauthorization and the protection of other constitutionalrequirements for the design of the data used inparticular the arrangements for notification ofindividuals and ensuring effective judicial subsequentlegislative acts of the countries left to stay. Theresponsibility for the constitutionality of theseregulations require that these so far directlythemselves

VI.

269The challenged regulations do not meet theserequirements. While § 113a does not contradict theAct if only the fundamental right to protection oftelecommunications secrecy under Article 10paragraph 1 GG, because the range of the storagerequirement would be in accordance with § 113a para1-7, 11 TKG disproportionately from the outset.

However, the rules relate to data security, for thepurposes and to ensure transparency of data use, notto redress the constitutional requirements. This lackof the proportionality principle correspondingdevelopment of the system as a whole. § § 113a,113b and TKG § 100g Code of Criminal Procedure tothe extent that the retrieval allowed under § 113a ofthe Act to be stored are therefore compatible withArticle 10 paragraph 1 is not GG.

2701st TKG § 113a is unconstitutional not only becauseof its reach. The legislature may judge ordered him

storage requirement, extending anlasslos accordancewith paragraph 1-7 to close to all traffic of publiclyavailable telecommunications services, than for themore effective law enforcement and risk prevention,appropriate, necessary and proportional in the strictsense (see above C IV). Despite their reach is theregulation on the volume of data collected her limitednor sufficient. The content of telephoneconversations, faxes and e-mails may, as § 113aParagraph 8 clarifies the Act expressly saved asmuch as the Internet or service provider, which has

contacted a user on the Internet. Also, the legislaturepursuant to § 113a para 1, 11 TKG six months and adetermined partake at subsequent cancellationdeadline of one month still a constitutionallyacceptable storage time. Also can not currently findthat the objective of the scheme in conjunction withother regulations on or amounts to create a generallycomprehensive data collection to minimize anyreconstructability activities of citizens. Importantinsofar as the validity of the data protection legislation

otherwise widely permeating principle of dataeconomy and numerous deletion obligations withthose of the legislature to prevent the occurrence ofavoidable data collections generally are looking for.Crucial to this assessment are particular about theextent § § 11 ff TMG, which basically require theservice provider after the Telemedia Act for thedeletion of not accounting for the required data (see §13 para 4 No 2, § 15 TMG) and also to avoid suchprivate incentives that internet content is recorded ingeneral commercial data collections and thusreconstructed remains. TKG § 113a can thus not beunderstood as an expression of general public datafor purposes of law enforcement preparedness andrisk prevention, but despite its vastness a limitedexemption that is trying the special challenges ofmodern telecommunications for law enforcement andsecurity into account.

2712nd In contrast, it lacks the constitutionally requiredfor such data collection to ensure a very high safetystandards. § 113a para 10 TKG couched in thatrespect only the vague permanent duty, throughtechnical and organizational measures to ensure thataccess to the stored data is possible only by speciallyauthorized persons, and refers only to the otherwise

in the telecommunications sector in general duediligence. This lack of a requirement that theparticularly high standards and guarantees thesecurity of comprehensive and meaningful datacollection in accordance with § 113a TKG account.The Case for the referenced § § 88 and 109 of theAct to ensure such very high safety standard does notallow it, according to its wide scope, multiplerelativities. This applies in particular to § 109 of theAct. Thus, under § 109 paragraph 1 TKG make anyservice arrangements or other appropriate technicalmeasures to protect the secrecy oftelecommunications and the telecommunications and

computer systems against unauthorized access. Todetermine the appropriateness of use is made to §109 para 2 sentence 4 of the Act (see Klesczewski,in: Säcker, Berliner Kommentar zum TKG, 2ndedition, 2009, § 109 para. 12). After the measures areappropriate if the necessary technical and economicburden is proportionate to the importance of theprotected rights. Based on the above-developedstandards, thus the specific requirements for theprotection of stored data in accordance with § 113aTKG are not sufficiently guaranteed. The legally



36

prescribed standard of "reasonable technicalprecautions or other measures required" only to usethe state of technological development "(§ 109 para 2sentence 2 of the Act; Klesczewski, in: Säcker,Berliner Kommentar zum TKG, 2 ed, 2009, § 109para. 13), and qualifies the security requirements inways that remain undetermined in the generaleconomy considerations-case basis. Moreover,further specification of this standard remains thechoice of the individual telecommunications service

providers, which must in turn provide their servicesunder the conditions of competition and costpressures.

272A detailing of these requirements is not ensured inthe form of ordinances or by the supervisoryauthorities. In particular, § 110 TKG not guaranteethe validity of reasonable safety standards. Althoughin the context of this standard to be created bysubordinate bodies (§ 110 para 2 and 3 of the Act)aspects of data security can be also determined.However, these - primarily determined by technicalobjectives - Standard contains no substantivestandards in this regard nor does it the aspect of datasecurity on otherwise. Moreover, two years after entryinto force of the storage requirement of § 113a of theAct a new regulation which takes account ofadjustment of telecommunications regulation doesnot occur. Accordingly, it is also - in December 2009pursuant to § 110 para 3 sentence 3 of the Act on thewebsite of the Federal Network Agency published(see the Federal Network Agency, Official Journal,2009, p. 4706) - Technical Directive on theimplementation of legal measures to monitor thetelecommunications and information requests forTraffic (TR-TKÜV) pursuant to § 110 para 3 TKG take

effect until one year after this adjustment (Index 1<Regelungsbereich> TR-TKÜV, Part B, TR-1<Grundsätzliches> TKÜV).

273A sufficient security guarantees nor § 109 para 3 theAct. Although the standard requires that operators oftelecommunications facilities to designate securityofficers, and to provide a safety have to present theFederal Network Agency. Even then, the conceptwhen he change the underlying "facts" to adapt andresubmit. However, so that a particularly highstandard of safety is not guaranteed reliable. Shall

record the provision alone operator, but not the entiretarget group of the Telecommunications Act § 113a,which also includes other service providers. Alsorefers to § 109 para 3 TKG material only to theinsufficient requirements of § 109 para 1 and 2 of theAct. It is also not guaranteed in sufficientlynormenklarer form a continuous and controlledadjustment of the safety standards at the state oftechnological development. Is not clear so farwhether § 109 para 3 sentence 4 of the Act also callsfor an adjustment to the technical development of

protective and evolving legal safety standards. In anycase, lack of commitment to a periodized continuationof the security concept, which could enable aneffective control in this regard.

274The lack of adequate safety standards in thetelecommunications law can compensate also § 9BDSG not in connection with the relevant schedule.Notwithstanding their sometimes abstract high

standards remain the standard that is applicable inany case, is subsidiary (see Fetzer, in: Arndt / Fetzer / Scherer, Telecommunications Act, 2008, before §91 para. 10; Klesczewski, in: Säcker, Berlinercomments TKG, 2nd edition, 2009, § 91 para. 15),too general to draw together in a sufficiently specificand reliable way, the very high safety standards toensure the Telecommunications Act § 113a for datato be stored.

275This has created a very high safety standard for §113a to TKG data to be stored is not guaranteed andnormenklarer in binding form. Neither theSpeicherungspflichtigen the expert of therespondents in the present method as the coreelements of these instruments (separate storage,asymmetric encryption, four eyes "principle,combined with advanced methods for authenticationfor access to the keys, audit logging of access anddeletion) set enforceable still other measures must beimposed on them to ensure a comparable level ofsafety. Also, there is a lack of a balanced system ofsanctions, the violation of data security no less weightattaches as violations of the storage requirementsitself is the fines for failure to comply with storagerequirements significantly wider than that for the

breach of data security (§ 149 para 2 sentence 1 inconjunction with § 149 para 1 No 36 and 38 of theAct). The constitutional requirements for the safety ofdata collection, as it is created by the Act § 113a issufficient to applicable rules, not with it.

2763rd The rules for the transmission and use of the datameet a set of sentence pursuant to § 113b 1 TKG notthe constitutional requirements.

277a) incompatible with the developed from the principle

of proportionality standards are the first schemes touse the data for law enforcement.

278aa) § 113b sentence 1 No. 1 Telecommunications Actin connection with § 100g Code of CriminalProcedure does not meet the very strict conditionsunder which alone is allowed under § 113a TKGstored data be used. It is true that the legislature withthese regulations in a differentiated and theirinteraction under Article 74 paragraph 1 No. 1 and



37

Article 72 paragraph 1 GG made final destination ofthe data used for law enforcement. The legislaturedoes it for the use of the data, however, meet similarrequirements as previously for the collection oftelecommunications traffic data were considered bythe service provider may save in accordance withtheir operational and contractual requirements in amore limited extent and for the individuals by contractpartially avoidable pursuant to § 96 TKG . Thisreflects the very serious operation, which is the

precaution anlasslosen and systematic data of § 113aTelecommunications Act does not sufficientlyaccount.

279Already § 100g para 1 sentence 1 No. 1 Code ofCriminal Procedure does not guarantee that may begeneral and also in individual cases, only seriouscrimes rise to a collection of appropriate data, but can- regardless of a final catalog - generally suffice majorcriminal offenses . Certainly remains § 100g para 1sentence 1 No. 2, sentence 2 StPO back behind theconstitutional provisos, by whatever their gravity anyoffense committed by means of telecommunication inaccordance with a general consideration as part of aproportionality test can suffice as a possible source ofa data query . With this scheme, the stored data inaccordance with § 113a TKG be of practical use inrelation to all offenses. Your use loses view of theongoing importance of telecommunications ineveryday life exceptional. The legislature is limited tonot place the use of data for the prosecution ofserious crimes, but goes about this - and thus also onthe European law specified purpose of data storage,limited in their turn solely on the prosecution ofserious crimes without the inclusion of risk prevention- far out. Although the use of this data, especially for

the prosecution of crimes committed by means oftelecommunication to be very useful, so harder torestrict the Enlightenment, in some cases or mayeven prevent. It is, however, in the nature of theguarantee of Article 10 paragraph 1 GG and relatedrequirements of proportionality, that not everymeasure that is useful for law enforcement and insome cases also may be necessary to constitutionallypermissible. Conversely, in consequence of this therelevant requirements of telecommunications in thearea of lesser offenses do not total to the legalvacuum: the information required under § 113 para 1of the TKG, the legislature - even under the indirect

use of the stored data according to § 113a TKG - forthe enlightenment provide for all offenses (see CV 4c). Similarly, thereby recourse pursuant to § 100gCode of Criminal Procedure is on otherwise than inaccordance with § 113a TKG stored communicationtraffic possible.

280bb) No constitutional requirements § 100g CriminalProcedure Code continues to the extent that it allowsin principle a data retrieval even without knowledge of

the person concerned (§ 100g para 1 sentence 1Code of Criminal Procedure). The constitutionalrequirements for transparency in the use of data allowa secret survey of the stored data according to §113a Telecommunications Act only if it is arranged oncompelling reasons required by law closer toconcretizing and judicial.

281cc) The design of the notification requirement is not

sufficient in all respects by the developed aboveprovisos. However, the scope of the proposednotification requirements, as such, no constitutionalobjections is exposed. § 101 paragraph 1, 4 and 5,Code of Criminal Procedure provides, in line with the

jurisprudence of the Constitutional Court (seeBVerfGE 109, 279 <363 et seq), differentiatedregulations, the principle of a subsequent notice tothe affected constitutionally viable in compensation tobring in most exceptional case conflicting interests.Not open to criticism in that regard in particular, thatare concerned to notify, on which the data query isnot related, in accordance with § 101 paragraph 4,sentence 4 Code of Criminal Procedure is not inevery case, but only in accordance with anassessment. As part of this assessment can andshould the interests of those affected indirectly, dueaccount should be taken into account.

282may be insufficiently contrast, the rules for judicialreview to cases in which notification omitted. § 101paragraph 6 Code of Criminal Procedure provides for

judicial review only for the deferral, the notice referredto in § 101 paragraph 5 Code of Criminal Procedure,but not for the waiver of notice pursuant to § 101paragraph 4 of Criminal Procedure. This reflects the

high priority of alert for a transparent use of the storeddata according to § 113a Telecommunications Actdoes not sufficiently account. Where a data queryrelates directly to traffic of a particular person, may bewaived its subsequent notification only after a judicialreview of the relevant exceptions apply. At one suchcontrol is lacking in those cases should be required inthose of a notice pursuant to § 101 paragraph 4sentence 3 Code of Criminal Procedure because theoverwhelming concerns of an affected person.

283dd) In contrast, judicial review of the data query and

data use is granted even in a manner consistent withthe constitutional requirements. The collection ofstored data in accordance with § 113aTelecommunications Act requires, according to §100g para 2 sentence 1, § 100b paragraph 1sentence 1 of the Code of Criminal Procedure orderby the judge. The court order authorized theauthorities not to a direct access to the data, butrequires the service provider own this as an interimarrangement according to the requirements of filteringout and reported. Furthermore, there is according to §



38

101 paragraph 1, section 7, first 2-4 Code of CriminalProcedure, the possibility of subsequent judicialreview of the legality of bringing about the action.That these laws guarantee an effective remedy is nottotal, is not apparent.

284Not regulated sufficiently normenklar however, thestatutory provisions regarding formal requirements forthe judicial order. § 100g para 2 in connection with §

100b para 2 Code of Criminal Procedure lays downminimum requirements for a decision by formula, butotherwise the general duty to give reasons applies todecisions under § 34 of Criminal Procedure. Thelegislature should consider a new system, whether itwould be helpful to the strict requirements of astatement of reasons of judicial orders (see BVerfGE103, 142 <151>, 107, 299 <325>, 109, 279 <358 f.>)by to give a special and differential provision reprint.In any case, is to ensure by law that the volume ofdata to be transmitted in the order in a mannerconsistent with the proportionality principle sufficientlyselective and for the service is clearly described.

85b) The challenged regulations do not meet theconstitutional requirements with a view to extractingand using the stored data according to § 113a TKGfor security and for the functions of the intelligence. §113b sentence 1 No 2 and 3 of the Act meets therequirements for a reasonable limitation of the uses ofhis investment by not already. The federal legislatureis content here with a sketch in just generalizing way,the task fields for which a data retrieval should bepossible, without specifically naming the uses. Heleaves the concrete rather later legislation, inparticular the legislation by the states. He is his

responsibility for the constitutionally requiredlimitation of the uses listed in no. If he orders thestorage of telecommunications traffic, it is up to him atthe same time, the necessary constitutional

justification for their uses, intervention and thepurpose to ensure the necessary follow rules set outbinding. Such provisions do not contain a clause §113b Act. Rather, the obligation of service forpreventive retention of all telecommunications traffic,while the release of this data for use by the police andthe intelligence services under nearly the whole taska set of diverse and unlimited use of open data pool,to the - only by rough objectives limited - in each case

on its own decisions, the legislature access to federaland state governments can. The provision of such apurpose being to open its data pool picks up thenecessary connection between storage and storagepurposes and is not compatible with the Constitution(see above CV 5 a).

286Not to criticize other hand, is that in § 113b TKG nocomprehensive regulations on notification obligationsor to judicial review in the event of use of the stored

data according to § 113a TKG are included forpurposes of security and the performance of duties bythe intelligence services. Although such rules areconstitutionally indispensable. The federal legislatorwas allowed to it with the retrieval of the data relatedto the respective schemes are a matter for theprofessional laws and leave it where appropriate, bystate laws.

287

c) The refinement of the use of the stored dataaccording to § 113a TKG is disproportionate since, asis provided for the transfer of any protection of trustrelationships. At least for a narrow circle of dependentspecial confidentiality of communication lines, such aprotection is necessary in principle (see above CV 2 eat the end).

2884th Finally, also satisfies § 113b sentence 1 sentence2 of the TKG, the indirect use of the stored dataaccording to § 113a TKG for information from theservice provider according to § 113 para 1 providesfor the Act, not in all respects with the requirements ofproportionality.

289After the above-developed standards, it is subject,however, no constitutional concerns that legislators in§ 113b sentence 1 sentence 2 TKG information aboutthe Connection Owner of certain authorities is alreadyknown IP addresses not covered by the very strictconditions, for an immediate retrieval of according to§ 113a TKG stored data must be considered. It is notobjectionable to the extent that, under § 113bsentence 1 sentence 2 in conjunction with the Act §113 paragraph 1 TKG such information without prior

judicial authorization for the prosecution of crimes ofall types and generally acceptable for the tasks ofsecurity and intelligence services are . Not quite clearthe scheme is to identify the required interventionthresholds. In a constitutional interpretation, they can,however, understood in the sense that § Points 113paragraph 1 TKG to the relevant specific legislationinterference basis and to access the data at least areasonable suspicion pursuant to § § 161, 163 Codeof Criminal Procedure or a specific risk under thepolice general clauses requires (see Bock, in:Geppert / Piepenbrock / contactor / Schuster,Beck'scher comment to TKG, 3rd edition 2006, § 113

para. 7; Graulich, in: Arndt / Fetzer / Scherer, TKG,2008, § 113 para. 8). The intervention threshold ofreal risk, the provision in a constitutional interpretationof the intelligence and requests for information beremoved.

290Also by way of constitutional interpretation can trackany abuse of the provision to circumvent the Code ofCriminal Procedure § 100g are met. § 113bauthorizes a sentence of clause 2, in conjunction with



39

§ 113 para 1 of the TKG in constitutionalunderstanding not open to query the authorities tosubscribers, the telecommunications links that are notknown. Rather, he allowed his grounds of the Lawaccording to the express direction only information onindividuals, the authorities previously known IPaddresses (see Bundestag document 16/6979, p. 46).The legislature may consider necessary under thenew rules, if he sees an opportunity to clarify this law.A unconstitutionality of § 113b sentence 1 sentence 2

in conjunction with § 113 paragraph 1 TKG has so farnot evident.

291In terms of proportionality, largely § 113b sentence 1sentence 2 in conjunction with § 113 paragraph 1TKG is the extent that it can be sufficient, generally,the punishment of offenses for such queries. Whilethe legislature is in accordance with the abovestipulations developed denied, in principle, similarinformation in the most important cases in the area ofthe offense right to use (see above CV 4 c). There isa need for this, however normenklarer of specificregulations to which it is lacking in this case. § 113bunconstitutional sentence of a sentence 2 inconjunction with § 113 paragraph 1 TKG also is alsoin so far as there are no rules to a notification ofindividuals. Pursuant to § 113 para 1, sentence 4 ofthe Telecommunications Act Auskunftsverpflichtetenmust safeguard against the person concerned todisclose, and also by the inquiring authority is noguarantee notification. This meets the constitutionalrequirements for a transparent use of the stored dataaccording to § 113a TKG not (see above CV 3 a).

2925th In summary, neither the legal requirements for

data security or the rules enough to use the dataaccording to § 113b sentence 1 No. 1Telecommunications Act in connection with § 100gCode of Criminal Procedure, § 113b sentence 1 No 2and 3 of the Act and § 113b sentence 1 sentence 2TKG the constitutional requirements. Thus it lacks thesame time the storage requirement of § 113a of theAct itself a constitutionally viable justification. Thechallenged regulations are generally not compatiblewith Article 10 paragraph 1 GG therefore compatible.

VII

293In contrast, the challenged provisions regardingArticle 12 paragraph 1 GG, where it must be decidedin these proceedings thereon, subject to anyconstitutional concerns. The complainant on 4) in aprocedure BvR 256/08 is not affected by thechallenged provisions and the related financialburden violated their professional freedom.

294

1st The imposition of storage obligations relating tothe complainant, at least so far as they also own apublicly available anonymizing server operates is,however, an interference with their professionalfreedom dar. As a commercial provider an anonymityservice they can rely on the professional freedomunder Article 12 paragraph 1 GG called. The schemehas objectively berufsregelnde trend. The storagerequirements are addressed to those serviceproviders who provide public telecommunications

services in the rule for consideration for end-users(see § 113a para 1, § 3 No. 24 TKG) and therefore toservice providers who offer services in any casetypically for commercial purposes.

295When the surgery is a professional system. This isregulated in § 113a TKG a storage and set a phrasein § 113b 1 TKG a delivery obligation, presentthemselves as technical stipulations for the provisionof telecommunications services. Is mistaken,however, the argument that the storage requirementto act as an anonymizing services career schemebecause a final anonymity can no longer be offered.Although a regime of occupation is not onlyconsidered if access is restricted by law to practice aprofession, but even if the meaningful exercise of aprofession is made virtually impossible (see BVerfGE30, 292 <313>). However, the storage requirementleads to § 113a para 6 TKG does not mean thatanonymization services generally can not beoperated. The anonymizing services can offer theirusers continue to surf without possible identificationof the IP address through a private on the Internet.They thus allow users to have a static (and henceopen) IP address to hide their identity and protectother users from hackers or other illegal access.

Repealed the anonymity only to the state authorities,while even if the strict conditions for the direct use ofstored according to § 113a TKG traffic data, a dataretrieval is an exceptional basis. Therefore only beheld so that customers whose anonymity is againstthe interest in these particularly serious cases,investigating authorities. The offer of a cascade isthus not a total invalid.

2962nd The reasoned by the imposition of obligationsstorage interference is justified by the Constitution. Itis neither disproportionate nor effort in the technical

terms of the associated financial burden.297Interference in the practice of freedom must be

justified by sufficient reasons in the public (seeBVerfGE 94, 372 <390>, 101, 331 <347>, 121, 317<346>). Basically sound reasons of public policysufficient (see BVerfGE 7, 377 <405 f.>, 16, 286<297>, 81, 156 <189>; established case-law). Heretoo, the requirements of the proportionality principle,which means the intervention must be to achieve the



40

engagement objectives, appropriate, necessary andproportionate in the strict sense. These conditions arefulfilled here.

298a) The storage and transmission requirements arealso legitimate in terms of invasion, the professionalfreedom of the objectives of more effective lawenforcement, security and the role of secret services.They are based on reasonable grounds that the

public interest for whose support they are suited. Aless intrusive regulation, which is not as effective andinexpensive for the public sector, is shown. Becausethe communication traffic will not occur since theprivatization of the telecommunications sector withthe state, this is in turn to a direct recording is not inthe situation. A production of any connection to thestate, so this makes the storage separates itself,because of the associated risks both for theprotection of telecommunications secrecy and for thesafety and completeness of the data. Also, thenecessity does not apply to breaches of employmentby the imposition of costs borne or costly obligationsnot simply because a financing would be the missionfrom tax for individuals of a less restrictive means(see BVerfGE 81, 156 <193 f.>; 109, 64 <86>). Milderagents are not those that move only a cost burden(see BVerfGE 103, 172 <183 f.>; 109, 64 <86>).

299b) The imposition of the storage requirement hasmade to the relevant service providers are typicallynot overly burdensome.

300aa) The storage requirement exceeds the limit ofadmissibility, not by the technical effort, they

demanded of the service providers. Since moving tothe relevant service provider in thetelecommunications market, they have already a highlevel of technical mastery in the field oftelecommunications data collection, storage andprocessing have. These skills have also smallenterprises in this sector. Moreover, at least amajority under § 113a of the Act is to be stored in anycase by the relevant telecommunications companysaved temporarily for their own purposes. Demandingorganizational requirements to ensure data securityarise not only from the storage requirement of § 113aTKG, but from the very subject matter of the offered

services of the companies concerned. To that extentthe imposition of specific obligations in accordancewith § 113a TKG not disproportionate in technical andorganizational terms.

301bb) disproportionate retention requirement is not inrelation to the financial burden on companies grow bythe storage requirement of § 113a of theTelecommunications Act and subsequent obligationstherein connected therewith as ensuring data

security. Report this particular is not because privatecompanies would thus inadmissible entrusted with theState. A categorical separation of "state functions"and "private activities" with the consequence of thefundamental inadmissibility of enslavement for publicpurposes by private individuals on their costs can notbe inferred from the Constitution. Rather, thelegislature has a wide discretion, the obligations ofcommon interests to ensure it has imposed in theprivate course of their work (see BVerfGE 109, 64

<85>). Basically, it can load and measures tosafeguard common interests that are requiredregulation as a result of commercial activities, therelevant market actors to impose in order to integratethe associated costs in this way in the market and themarket price. The legislator is not confined to privateuse only in service when their professional activitycan cause immediate danger or they are directlyregarding these risks is at fault. Rather, so farreaches a sufficient factual and responsibilityproximity between the occupation and imposed theobligation (see BVerfGE 95, 173 <187>).

302Subsequent to this, against the cost burden arisingSpeicherungspflichtigen no fundamental objections.The legislature moved in this way associated with thestorage costs in accordance with the privatization ofthe telecommunications sector as a whole in themarket. Just as the telecommunications company ofthe new opportunities to use telecommunicationstechnology to make a profit, they must shoulder thecosts for the containment of the new security risksassociated with telecommunications, and process intheir prices. The obligations imposed on companiesare closely related to the services they provide andcan even be provided as such from them. Also here

are not imposed on individual service providers acase-specific victims, but designed in a general formthe framework for the provision oftelecommunications services. It is therefore notconstitutionally objectionable if the companies havethis then bear the costs principle. But the law doesnot gemeinwohlbezogene aim to provide a charge forthis (see BVerfGE 30, 292 <311>). A law thatregulates the profession in the way that privateindividuals in the exercise of their professionalobligations imposed on it regularly and cover amultitude of people is not already considereddisproportionate when it charged unreasonable

individual concerned, but only if at a larger affectedgroup violated the prohibition of abuse (see BVerfGE30, 292 <316>). have that the cost burdens in thisway choking effects is neither substantiated nor madevisible.

303It is to be examined further whether or not concerningparticular groups of cases (see BVerfGE 30, 292<327>) or special situations from the perspective ofproportionality hardship rules are necessary. For at



41

least this is clear from the arguments of thecomplainant on 4) in a procedure BvR 256/08nothing. In particular, it has also in relation to ananonymization services on the satisfaction with othertelecommunications companies in excess burden forthemselves or for other providers of such services byconcrete evidence to understand numbers. Onlyunder this condition could be ascertained to exceedthe legislative discretion in the enslavement ofanonymization services. As long as the assessment

is made by the legislature only by conjecture andallegations in question, the Federal ConstitutionalCourt does not examine this issue (see BVerfGE 114,196 <248>).

304No fundamental concerns about possible remainingcost burden is also subject to the requirements ofdata according to § 113b sentence 1 No. 1Telecommunications Act in connection with § 100gCode of Criminal Procedure, to which the legislaturea compensation scheme has provided for (see § 23para 1 Court Payment and Compensation Act). Theenvisaged compensation claims are not the subject ofthese proceedings.

VII I

305The further result from the fundamental rights, insofaras their alleged injury is permitted, no furtherdemands on the challenged provisions.

IX.

306The infringement of the fundamental right toprotection of telecommunications secrecy underArticle 10 paragraph 1 GG leads to the invalidity of §§ 113a and 113b of the Act and § 100g para 1sentence 1 Code of Criminal Procedure, when suchtraffic can be levied in accordance with § 113a Act.The affected standards are therefore to explain indetermining fundamental breach invalid (cf. § 95 para1 sentence 1 and § 95 para 3 sentence 1 of theFCC). Accordingly, the interim due to the

arrangement of 11 March 2008 and 28 be in October2008, by service in the context of requests forinformation collected for the time being but notdeleted immediately transmitted to the requestingauthorities, but saved telecommunications traffic. Youmay no longer be forwarded to the requestingagencies.

307

The decision on the reimbursement of expenses isbased on § 34a para 2 Federal Constitutional CourtAct.

308Die decision was adopted unanimously asregards the European law issues, the formalConstitution and the fundamental compatibility ofprovisions of the Constitution of telecommunicationstraffic data in the result. Regard to the review of § §113a and 113b the Act to be unconstitutional, it is the

result of 7-1 votes, and for more on substantiveissues, so far as appears from the dissenting votes,taken after a 6-2 vote.

309That the provisions in § 95 para 3 sentence 1 FederalConstitutional Court Act are declared invalid andincompatible not only with the Constitution, theSenate has decided by 4-4 votes. Accordingly, therules are not applied to a limited extent transitionalfurther, but it remains the statutory standardconsequence of the annulment.

PaperHohmann DennhardtBrydeGaierEichbergerSchluckebierKirchhofMasing

Dissent ing opinion of Judge Schluck ebier


- 1 BvR 256/08 -- 1 BvR 263/08 -- 1 BvR 586/08 –

310I can not the decision in the result and in much of thereasoning of the considerations outlined below agree.

311The retention of the traffic wrote the Senate to the

effect of a very serious interference with thefundamental right under Article 10 GG. I believe thatsuch a procedure is indeed attach particular weight:he turns out to be compared to content-controlmeasures as of significantly lesser severity (I.). Iconsider the costs imposed by the retention of trafficand criminal proceedings access control interventionbeyond the face of the legislators' objectives,including the Enlightenment and of offenses inindividual cases of major importance, or viatelecommunications committed, however, difficult



42

unclarifiable are constitutional in principle justified.The underlying rules to keep my opinion of theproportionality test in the strict sense, a particularadequacy and reasonableness test was essentially(see II). This excludes only the content requirementsare to ensure the security of data to be stored andtransmitted communication traffic, so far I agree withthe Senate majority, without that 'the further take up.The legal consequence would be saying on the basisof the assessment, the Senate majority of the

annulment of the contested provisions in sight, in myopinion was, it should have been in accordance withthe interim measures taken by the Senate until a newarrangement for further deems applicable (see III.).

I .

312The Senate majority sees the retention of traffic datafor a period of six months for the service was veryserious encroachment on the fundamental right underArticle 10 paragraph 1 GG. This weighting I do notshare.

313The telecommunications secrecy protects thecontents and the circumstances of the communicationbefore taken notice of the public authorities (seeBVerfGE 100, 313 <358>, 106, 28 <37>, 107, 299<312 f.>). If we write the obligations of the privateservice providers to store (§ 113a TKG) engagementquality, because providers' auxiliaries of the statewere "and this was therefore attributable to theretention gains, so for assessing the intensity of theinterference, the fact of particular importance that,

before a possible access by state agencies, the trafficonly in the sphere of private service providers remain.You are in the hands of the contractor, which theservices to be used taker entgegenbringt that whenthe contract conclusions of this kind presupposedbasic trust, this would treat any case, first madeoperational and billing to technical reasons resultingdata strictly confidential and ensure their protection.Moreover, the potential for the state of the artappropriate level of data security is ensured, thuslacking any basis for adopting an objectifiedeingriffsintensivierenden intimidation effect or one -as the Court put it - "feeling of constant

Überwachtwerdens" and the "diffuse threat." Inaddition, the recording is not secret, but because ofadvertised Act. Its subject is not the content oftelecommunications operations. As far as the trafficpermit limited conclusions on such content or evenenable the production of motion pictures and socialprofile, this concerns the question of proportionality ofthe corresponding access rules and respect theproportionality requirements of the law level. Thatsuch intrusive done in individual uses in existenceaccording weighty reasons, it does not justify them as

exceptional cases, when they prove themselves onthe whole to attach decisive importance in weightingthe storage and this fully be used.

314The Senate has already in its ruling of 12th March2003 (BVerfGE 107, 299 <322>) for release ofconnection of telecommunications, which wererelated to telephone calls, underline that the weight ofthe surgery - then across the call - behind the left on

communication content related telephone tapping, ofcourse, but still large was. Although in this case giventhe widespread view of the storage requirement andprudence a special case design. However, it must atthe weighting of the interference observed is still aperceptible distance from such a very serioussurgery, such as those for the acoustic surveillance ofprivate homes or in online searches of informationtechnology systems, but also in the contentmonitoring and evaluation of telecommunicationsthrough direct access of state organs available andwhere, moreover - unlike here - is particularly the riskthat the absolutely protected core area of private lifeis concerned. The collection of traffic data of alltelecommunications contacts with the privateproviders without notice by the public power andunder tight material conditions separately, thepossibility of - a regular basis on the enforcementlevel by the ordering judge reviewed and strictlylimited - query as procedural, backed measures -such as those provided for the collection under §100g Code of Criminal Procedure are justified -however, from the perspective of the individualconcerned fundamental institution not thus seriousencroachment on basic rights that would justify thisrate as "very serious" and therefore classified as oneof the größtdenkbaren interference with the

fundamental right. After that surgery remains a resultof storage with the private provider that can becharacterized as particularly weighty. This distinctionfurther gains its importance in assessing thereasonableness of the challenged provisions.

I I

315The challenged regulations on the storagerequirement and the collection of traffic data for law

enforcement - are different from the assessment ofthe Senate majority - not inappropriately, they arealso reasonable for the parties concerned andtherefore relatively proper.

3161st The rules satisfy the need for adequacy andreasonableness as sufficient discharge of theproportionality principle into account. Based on anoverall balance between the seriousness of theprocedure in Article 10 paragraph 1 GG and weight of



43

the reasons justifying it turns out that the legislaturehas maintained this requirement limits flowing.

317The requirement of proportionality in the strict senserequires that the seriousness not of surgery for a totalconsideration may be disproportionate to the weightof the reasons justifying it (see BVerfGE 90, 145<173>, 92, 277 <327>, 109, 279 <349 et seq, 115,320 <345>). In the tension between the duty of the

state to legally protected rights protection and theinterests of the individual in protecting his guaranteedby the constitutional rights it is first task of thelegislature to achieve in an abstract way ofreconciling the conflicting interests (see BVerfGE109, 279 <350 >, 115, 320 <346>). He is there -which in the approach the Senate majority proceedsterminology - an Assessment and discretion.

318In evaluating the constitutional adequacy of thescheme is the main point to consider thatfundamental rights are not exhausted by it to fight offinterference by government. Strength of theirobjective-legal dimension follows from them the dutyof the state to protect the citizens against attacks.This duty to protect includes the duty to takeappropriate measures to prevent the infringement oflegal interests, if necessary, educate, assignresponsibility for them and the right to restore peace(see, Jutta Limbach, AnwBl 2002, p. 454). In thissense, is one of the ensure the protection of citizensand their fundamental rights and the foundations ofthe community and the prevention of significant crimeat the same time as the Enlightenment to theconditions of peaceful coexistence and the carefreeuse of the fundamental rights by the citizens.

Effective investigation of crime and effective securityare therefore not per se a threat to the freedom ofcitizens, however, is not permitted without measureand limit. They are offered in the context ofappropriate and reasonable to protect the use offundamental rights and to protect the legal interests ofthe individual. The citizen must be in theconstitutional right to effective protection by the statecan leave the same as on the protection against thestate (see Di Fabio, NJW 2008, p. 421 <422>).Accordingly, the Federal government as the author ofpeace and for order described, and by himacknowledged to be guaranteed the security of its

citizens as a constitutional value that is consistentwith others in the same rank and indispensable,because the institution of the state derives also ontheir justification (see BVerfGE 49, 24 <56 f.>, 115,320 <346>).

319In the balancing of conflicting interests by thelegislator who has to create the legal basis for theinvestigation of crime and security services,considering also that individuals are be expected in

its community-and Gemeinschaftsgebundenheitdegree of harm that the legal rights of protection andfundamental rights of others citizens, but also serveits own protection (see BVerfGE 4, 7 <15>, 33, 303<334>, 50, 166 <175>). It is also clear view to begiven to the legislature a room to its regulatorycompensation, both to protect the freedoms of thefundamental institution, the other to create but thoselegal framework to provide effective protection offundamental rights and legal interests of citizens

against injury and the investigation of punishable byappropriate and reasonable resources to enableeffective.

3202nd The legislature has dealt with the requirement forstorage of telecommunications traffic data for a periodof six months, the intended use legislation and thecriminal proceedings charging scheme in which heheld constitutionally rightful design framework. Theproceeding from the contested provisions impairmentfor those affected by the traffic datatelecommunications operators in respect of theprotected rights and legal interests not to place undueand unreasonable, on the other side of the to-findcompensation is legislative weighting of the protectionof the injured by crime legal rights of individuals andthe community and the corresponding defensivethreats in the age very far-reaching expansion ofelectronic communication, which often leave littletrace. This looks, in principle, the Senate majority, sothis aspect into account, but only in assessing thequestion of the appropriateness and necessity of therules, puts it, however, not explicitly in areasonableness review, the interests concerned really"is another in a relationship".

321a) the legislature when abstract balance in questionare legally protected rights and interests in thetension between "freedom and security" first rightfuldesign space (see BVerfGE 109, 279 <350>, 115,320 <346>) is determined by the nature of theregulatory objects and the reality of the scheme to bemet, with marked. Therefore, the purpose andeffectiveness of the schemes also in assessing theadequacy and reasonableness of taking in the view.

322The legislature has fundamentally reformed the law

on the reform of telecommunications and otherundercover investigative measures and theimplementation of Directive 2006/24/EC of the systemof criminal procedure covert investigative methods.He has drawn in a very careful manner to opinionformulated, an extensive discussion in the law, butalso reviews the prosecutor and police practice (seeBundestag document 16/5846 Law, p. 1). In theparliamentary process is a detailed consultation ofexperts made (see the minutes of the 73rd and 74thmeeting of the Legal Committee of the German



44

Bundestag, 16th legislative period, on 19 and 21September 2007). The effort was also to implementthe previously present law of the FederalConstitutional Court. The law was eventually adoptedby a huge majority (see plenary of the GermanBundestag, 16th legislative term, 124th meeting on 9November 2007, p. 13 009 (D), see also theintroduction speech by Federal Minister of JusticeBrigitte Zypries, op plenary p. 12 994 f.). Thelegislators wanted new technical developments into

account, as it particularly difficult to clarifyindeterminate crime, transaction and economic crimeas well as crimes committed with the use of moderncommunication technologies (see Bundestagdocument 16/5846 Bill, p. 2), even the has attachedto this issue in the regulations impact. It was furtherthe stated aim of the imperative needs of effectivelaw-based criminal justice into account, whose job itis to create within the limits of their justice and peacelaw. This objective, the discoverability of the factsnecessary to inform in advance in principle (ibid. p.22). It is the legislature also assumed that the verycommunication traffic due to the technicaldevelopment towards flat rates - unlike of past time,

just as the connection of telephony, many monthswere available - often either are not even stored oralready deleted once before may be a court order todisclose information obtained or even necessary forsuch a request information previously identified (ibid.p. 27). It is also widely known that even in the Internetand even crimes are committed. The social reality,which includes the presence of crime, is formed herefrom the various divisions in the area oftelecommunications. If the legislature responds tothis, which, according to his assessment required butonly effectively possible if the corresponding trafficdata subject for a certain period of storage and

storage requirement, it applies to the serviceproviders, it is not in principle inappropriate and thefundamental institutions, whose data it is reasonableto expect. Such precautionary knows the law in otherfields, for example - without this being directlycomparable - in the field of Einwohnermeldepflichtenor suspensions of the so-called account informationby the banks (see § 24c KWG, BVerfGE 118, 168).

323That is not the approach adopted by the legislature isout of balance, a certain degree of comfort is alsoreflected in the Annual Report 2008/2009 of the

Federal Network Agency, showing the evolution ofthe number of different approaches to voice and otherdata communication in recent years. The reportshows impressively the exorbitant rates of increase inthe number of connections, but above all of theinformation exchanged in the network voice and datavolumes. It demonstrates that the communicationbehavior of people in recent years has fundamentallychanged (cf. ibid p. 38 about the DSL connections, p.50 to encourage participation in the mobile networks,p. 53 Sprachvolumen to cellular, the growth rates in

the flat rate billing, p. 59 for volume of traffic overbroadband connections).

324Under these circumstances, it may not be in principlethe legislature failed to give attention to the protectionof the legal rights of victims of crime on theeffectiveness of the remedies available to him meansand to the changed situation - even by the obligationof service in their sphere keep traffic data for a certain

duration and hold - to stop. The pace of stateinstitutions with the technological progress can thenbe understood not merely as a useful round out thearsenal of criminological investigation, whichcomplements remains effective conventionalmeasures of investigation, but is against thebackground of the displacement of traditional forms ofcommunication through to electronic communications,including the subsequent digital processing andstorage to be seen. For effective law enforcementand security not only in relation to serious crime, butalso for the investigation of crimes that are of majorimportance in a particular case or to be committed bymeans of telecommunication, but are without accessto heavy traffic unclarifiable, the availability of trafficfor a period of six months is not objectionableassessment of the legislature is of great importance(see BVerfGE 115, 166 <192 et seq, see also FederalConstitutional Court, 1st Chamber of the SecondCourt decision of 22 August 2006-2 BvR 1345 / 03 -,NJW 2007, p. 351 <355>).

325The Senate majority recognizes accordingly, that theincreased use complicated electronic or digitalcommunication and its penetration into almost allareas of life, the law enforcement, as well as security

and advanced communication technologies in thecommission of various crimes are increasingly beingused and there to the improvement and crimecontribute. They weighted this development but withthe proportionality test in the strict sense, not to thenecessary extent for my opinion.

326b) The Senate majority also restricts the assessmentsand flexibility for the legislature to meet on the field ofcrime intelligence and security to protect peopleadequate and reasonable rules, a practical result inthe almost complete. So that it is also the

constitutional principle of judicial restraint ("judicialself-restraint") to conceptual decisions ofdemocratically elected legislators are not sufficientlyaddressed. It gives the legislature a legal system untilthe details on the nature of an action guide that itleaves no room for a significant solution which theexisting, developed relationships in thetelecommunications sector will meet for itsassessment.

327



45

The ruling is a storage period of six months - that therequired by the EC directive minimum - as in theceiling before lying down and possibly constitutionallyrechtfertigungsfähig, wrote to the legislature before ofcontrol that the intended use legislation also containsthe access conditions have limited him to a catalogdeeds Technology in criminal law and exclude thepossibility of the use of traffic also to educatecommitted by means of telecommunications difficultinexplicable crimes and expands the notification

obligations and the legal minimum requirements of acertain kind then left to the legislature, no significantroom left for a refinement in our own politicalresponsibility. He is essentially limited to the edges ofthe catalog for the criminal proceedings pollingslightly adapt and change. He must implement theruling, he will not waive a revision to Community law.This replaces the verdict in practice to the legislationto the Senate for the details of a constitutionallypermissible only considered scheme.

3283rd The Senate majority calls for the legislature tocreate, in the context of the purpose of determiningthe same time, clarity on the access conditions andverfahrenssichernde requirements. Protect it from thelegislature the control system able to work with asystem of complementary legal bases, as is in otherareas so far been without challenge. Thus, theSenate Constitution about the so-called accountinformation decision is not contested that the demandfor the performance of other regulated legal tasksmay be required are described must call event andeligibility in a different law (see BVerfGE 118, 168<191>) . Use information deemed insufficient, theSenate however, was in the decision to so-calledautomatic number plate recognition, where the

challenged law, however, made no statement ofpurpose, and therefore all possible uses wereincluded (see BVerfGE 120, 378 <409>). The casehere is different, however (§ 113b TKG). It istherefore just the norm clarity and, if those legalrequirements and stipulations that lead to thesignificant intensification of the procedure byretrieving the data that are regulated in a specificarea each rechtsgebietsbezogenen independentnormative structure. Both schemes are naturallysubject - possibly also in their interaction - theconstitutional requirements and the ConstitutionalCourt review. Even when compared to a national

legislature of the federal legislature the responsibilityfor the storage of traffic data bears any additionalregulation in their country must also satisfy theConstitution. A legal protection deficit can nottherefore arise.

329Accordingly, there was no reason, in addition toaccess to the criminal standard of the Code ofCriminal Procedure § 100g, which has been with theconstitutional part, attacked to respond also to the

detailed requirements for the use of traffic data forsecurity purposes and for purposes of intelligence.

3304th The Senate denied the legislature finally theretrieval of traffic data for the investigation of crimesthat are not described in the current catalog of § 100apara 2 Code of Criminal Procedure, but in individualcases are still of considerable importance, and ofsuch acts which are committed through

telecommunication (§ 100g para 1 sentence 1 No. 1and 2, Code of Criminal Procedure). He also is notsufficiently taken into account the weight of theeligible offenses, and - as far as the legislaturedeemed it difficult unclarifiable - their importance forthe effective investigation of crimes. In the case ofNo. 1 of § 100g para 1 sentence 1 Code of CriminalProcedure, the legislature is based on criteria set bythe Senate in its ruling of 12th has in March 2003(BVerfGE 107 approved, 299 <322>) for release ofconnection of telecommunications. There, the Senatepointed out that that intervention is justified only foroffenses which attaches to the legislature a generalfocus on and to have considerable importance in thiscase also, as a result of the damage, and the levelsof threat to the public. I do not see that the Senatewould not there complained of interference thresholdfor accessing so-called traffic-weighted stocksfundamentally different. The proportionality test thenthe responsibility of the case in question, making theordering judge, who also include the weight of accessto the traffic in each case to weigh in with and to belimited by the text of his order.

331With regard to the wishes via telecommunicationsacts committed for the excluded, the Senate access

to the data stored in accordance with § 113a TKGalso know traffic is not weighted enough that thelegislature starts here of considerable educationaldifficulties. These can appear next to the specificweight of the aufzuklärenden fact, the retrieval ofoutstretched traffic to be appropriate, especially asthough equipped - as here - the legislature, theretrieval conditions with strict subsidiarity clausegiving the measure is admissible only if theinvestigation of the facts or to determine thewhereabouts of the suspect by other means would befutile and the collection of data - even in the case - inproportion to the importance of the matter is (§ 100g

para 1 sentence 2 Code of Criminal Procedure).332As it is for the legislature to ensure effective lawenforcement and to preclude any significant gaps inprotection, it can he not be denied, even on this sideof particularly serious crimes in respect of the leastnor specific weight of an injured legal right to accessto open to traffic because he thinks in hisassessment, to exclude only as the emergence in factlargely lawless areas and a broad drain of the



46

Enlightenment. Examples of such point is the extentof the criminal element of the enactment (§ 238paragraph 1 No. 2 StGB, cyber-stalking "), whereverification at a" statement against hers constellation", but also to identify an unknown perpetrator, the firstTraffic often the only identification approach are. Thepossibility of a flying start here leads further limitedbecause it is not recorded as the e-mail traffic, andultimately dependent on the goodwill of the serviceprovider. The same applies to the facts of the threat,

but especially in the area of fraud on the Internet, areavailable at the police crime statistics as evidencedby the significant number of cases in question.Considering finally come, other offenses (§ 202a to202c, spying and interception of data, see also § §269, 303a, 303b of the Criminal Code, forgery ofevidentiary documents, data manipulation, computersabotage, § 38 para 1 WpHG in connection with § 14para 1 No. 1 WpHG, so-called insider trading, § 38paragraph 2 in conjunction with § 39 Paragraph 1 No.1, § 20a para 1 sentence 1 WpHG, Nos 1-3, unlawfulmarket manipulation, § 86 StGB, the spreading ofpropaganda of unconstitutional organizations ).

333While it would seem inconceivable that the legislatureone of these events provided for in the Senate takesup the required catalog of serious crimes. He will,however, the limits of the fault principle undertookreasonable threat of punishment, which is able to

justify this. Offenses that are not committedprofessionally or raise any particularly large claims inindividual cases, may be hardly included in such alist, as he envisioned the Senate. Also, the use ofoperationally only remaining "non-stock data" is theexplanation, lack barely able to mitigate. There arebig differences between the providers experience.

Part are not recorded the data, some after only a fewhours or days cleared. Even the investigative stepsthat lead to obtaining a court order and then preparefor such a request, and the decision on theapplication are often a long period of claim, as thetraffic data available for operational reasons beforethe service is.

3345th Similarly, as regards the access threshold set bythe Senate for security purposes. By the Senate forsufficiently weighty legal rights held to consider thetraffic as accessible and usable, would have given the

defense is not also a general danger to property ofsignificant value, their conservation in the publicinterest must be included. It seems incomprehensibleto exempt significant property in this sense, as theseare also constitutionally protected (see Article 14paragraph 1 GG). The inclusion of protection and thisis not then at least inappropriate, if the traffic datacollection - such as in § 20m BKAG - also provides asubsidiarity clause ("... otherwise difficult or hopelessmuch would be. ").

3356th As far as the Senate majority eventuallyextending the notification requirements in case ofaccess to traffic postulated and in principle for thecriminal law is not only a so-called open access, but arequired "before the query or submission" successfulend notification when the protection is not contrary tothe study purpose, leaves these requirements, thelegislative approach and takes over Sun in thediscretion of the legislature. The concept of the

legislature passed, to regulate all "undercover"actions, which he has calculated explicitly the trafficdata collection (Bill BTDrucks 16/5846, p. 2). Also §100g Code of Criminal Procedure provides that trafficdata (initially) "without the knowledge of thoseconcerned" may be levied. This also has a goodreason. Because investigations are regularlycharacterized by a considerable momentum and leadto accelerated. Expenses, the verfahrenssicherndenand law-enforcement purposes are not necessarilydue to real time, initially held in check. The legislatorhas therefore taken for the traffic data collection asophisticated system for the notification (see § 101,Section 1, paragraph 4, sentence 1, No. 5, para 5Code of Criminal Procedure), which requires no priornotice. In addition, he has to raise with thepermission, initially without knowledge of the affectedtraffic, made an apparent typing, which derives fromthe fact that often hinder the purpose of theinvestigation, the Nichtbekanntsein the whereaboutsof the person concerned or the need to speed up thefindings of a pre-alert. This is obviously notinappropriate to the person concerned is reasonableand therefore the legislature constitutionally at liberty.

I I I .

336By the Senate were to annul the contestedprovisions, although the legal consequence of theincompatibility statement carried by the majority.However, it would have here on the basis of theconstitutional assessment of the majority, drawing ona permanent jurisdiction of the Federal nearby to seta deadline for the legislature for new rules andexisting regulations in line with the stipulations of theSenate adopted interim measures to temporarily toexplain more applicable. For the Senate grants the

legislature the possibility to provide a traffic datastorage requirement for six months and to createunder the conditions stated in the ruling also accesssystems, which are essentially the provisions of theinterim measures. The stipulations of the Judgementis different from those in the interim measuresprimarily only in that higher demands on data securityand notification obligations are further claimed. Thissuggests, according to the assessment - the frequentpractice of the Federal Constitutional Court - by adeclaration of invalidity in sight at first and not to



47

consider it mandatory to allow temporarily just toaccess data service providers, who are foroperational or billing reasons still exist . So then forthe time being until a new arrangement for thesecurity and significant deficiencies in theinvestigation of serious crimes also have to get in andpurchase made. On the grounds of the interimmeasures adopted by the Senate and made trade-offs there is referred. In addition, the service providermust suspend their steps for the implementation of

the challenged legislation and to establish the oldstate have to in the case of Community law alreadyrequired new, amended law to create the conditionsagain at considerable expense.

Schluckebier

Dissent ing opinion of Judge Eichberger


- 1 BvR 256/08 -- 1 BvR 263/08 -- 1 BvR 586/08 –

337I agree with the decision of the Senate majority inparts of the sentencing outcome, and in essentialelements reasons not to. I agree in principle thecriticism of the judge Schluckebier thereto, whoseopinion I am in and the ground plug in the greatmajority. I can therefore concentrate in the following

to a brief summary of the considerations bearing onmy position:

3381st Also, in my opinion, the legal arrangement of thestorage of telecommunications traffic data iscomprehensive and objective view of their staff,external, and their Anlasslosigkeit the considerableduration of the required data reproach a weightyintervention in Article 10 paragraph 1 GG. Since,however, limits the obligation to store the traffic dataand does not control the content oftelecommunications operations, and because it is

decentralized in the private service, associated withthe storage of the intervention was not the overridingweight to the Senate majority attributes to him ingeneral. The fear, the Senate majority by theintimidation effect on the communication behavior ofthe population, I think, given the legislativeconception of the data, which excludes a free accessof public authorities at the decentralized amongprivate service providers store traffic and strictsubstantive and procedural hurdles - especially asubstantial judges subject - for a data retrieval

provides or supplement also, in my opinion to suchstatutory requirements nor is unfounded, at least forempirical evidence.

339The main load effect for the subject of protection ofArticle 10 paragraph 1 GG, which starts from thearrangement of data storage for the citizen is,therefore, I believe, for even in the first place in thelate of this huge data hazard potential due to abuse

by the service providers themselves throughunauthorized third parties or by an excessive use oflaw enforcement or police authorities. Against thismust be taken precautionary. Therefore, I fully sharethe position of Senate majority to the requirements fora sophisticated backup, the service providers are bylaw prescribe. Even a majority of the other proceduralsafeguards for data storage, data retrieval and withthe further data (deletion and logging requirements,transparency and legal requirements), which holdsthe Senate majority to offer, I agree in principle,although subject to the Judgement of the Senatemajority to the legislature in this regard madeprovisions in my estimation over long distances tosmall pieces, and not sufficiently take into account thediscretion, conferred by the Constitution to thelegislature in this context.

3402nd Unlike the Senate majority and in accordancewith the judge Schluckebier I am of the view that the§ § 113a, 113b TKG underlying legislative concept ofa tiered legislative responsibility for storage andretrieval arrangement in principle with the Constitutionis consistent. Under this concept based TKG § 113bno independent, on the order of the data in § 113aTKG beyond interference with Article 10 paragraph 1

GG. The rule contains rather offered by theconstitutionally intended use for the storage of trafficdata. Only one sentence in § 113b theTelecommunications Act provided for other statutoryauthorization for retrieval of traffic leads to a renewed,on the importance of data storage beyond previouslyperformed surgery in Article 10 paragraph 1 GG. Inthis way, the federal legislator leaves with § 113bTKG in charge of the relevant matter; legislature ofthe Federation or the Länder to him to decide byvirtue of his constitutional and democratic legitimacyof rightful authority, whether and to what extent thepurpose of law enforcement, security or should

access to the needs of the intelligence on thetelecommunications traffic. Here, the respectivelegislature of course true to themselves theconstitutional limits of a relative access to the traffic.

341A constitutionally impermissible arrangement is on adata storage for indefinite purposes not herein. Thefederal legislature has designated in § 113b togetherwith the Telecommunications Act made in § 113aTKG obligation of service for data storage, the



purposes for which the stored data may be used. Bythe federal legislature, the arrangement of the datataken on responsibility for the fact to the detriment ofcitizens established risk potential requires, however,also in my opinion - so far I agree with the position ofSenate majority in the starting point to - in addition tothe basic definition of the purpose of establishing atleast a minimum threshold for intervention, such asthey described in § 113b sentence 1 No. 1Telecommunications Act in connection with the same

time adopted a Code of Criminal Procedure § 100gpar for the prosecution and with the concept of"significant dangers" in § 113b sentence 1 No. 2 TKGfor security, but not comparable to § 113b sentence 1No. 3 TKG for fulfilling the tasks of the intelligence isprovided. This would require the appropriatesupplement. A detailed and final determination ofuses, as the Senate majority required by the Federallegislature at the same time with the arrangement ofdata storage, however, I think of constitutionallyunnecessary.

3423rd Finally, and above all, I can weigh the outcome ofthe Senate majority does not agree, as far as theCode of Criminal Procedure provided for in § 100g §113a by use of the stored data for purposes of the Actprosecution deems unconstitutional. This is due firstis that the Senate majority, even in the base causedby the arrangement of data storage procedure inArticle 10 paragraph 1 GG, in my opinion too muchweight and the legitimate concerns of the generalpublic as well as individual citizens in an effectiveeffective law enforcement and security on the otherhand too little importance attaches. It also respectsthe legislature in the evaluation of the competinggoods and protect the rightful scope of the scheme to

low. Here I refer to the split of my comments in thedissenting opinion of Judge Schluckebier.

343The proportionality test, the Senate majority alsosuffers from the fact that they always in theirconsideration of the widest possible engagement of acomprehensive, ultimately proceeds to a movementor social profile of the concerned citizens aimed dataretrieval. Herein may lie in the fact a procedure that isequivalent in severity to that of a weighty its access tothe telecommunications content of the citizen. Thisview does, however, out of consideration that a large

number of data queries individual events, shortperiods and telecommunications relations only one ora few individuals (such as the telecommunicationslinks of a person on a date or have as their objectonly in a given hour) can. One such query data isshown only a slight, certainly not to communicate with

the access to content similar surgery weight, despitethe fact that they will be answered from the full-scaledata collection. By the Senate majority sees based inany data retrieval a very serious infringement ofArticle 10 paragraph 1 GG, regardless of its real levelin the particular case and, therefore, the legislaturegenerally constitutionally very high activationthreshold thinks committed, she is, even if They denythis, I believe also in contradiction to a rating that thesame data by the Senate without objection, may be

interrogated by the authorities, if they are not storedaccording to § 113a TKG, but from the service foroperational reasons.

344Proceeding from this I can not agree, despite thedifferent weighting in the base by the Senate majorityto scale formulated requirements for a permissibleuse of traffic data for reasons of security andintelligence purposes (CV 2 b and c) still, but not therequirements for the use of data to track crime (CVand C VI 2 a 3 a aa). In that regard, I consider thatthe legislature in § 100g Code of Criminal Procedurecreated differentiated approach to data collection anduse law enforcement to be constitutional. It is theresponsibility of each individual case to rule on theadmissibility of a data query called to judge thelegitimate interests of those affected by Article 10paragraph 1 GG, taking into account the weight of theapplied techniques to adequately take into account,as is true for the crimes committed by means oftelecommunications offenses in § 100g para 1sentence 2 Code of Criminal Procedure by law, willalso formally required.

3454th Even from the standpoint of the majority of the

Senate, in my opinion would be only theunconstitutionality of the challenged provisions, anddetermine in accordance with the interim measuresadopted in this case at least the interim datacollection and storage order pending theestablishment of a constitutional revision have been.With the seamless annulment of the provisions andthe obligation to delete the findings on the basis ofinterim measures traffic increases, the Senatemajority disadvantage to the prosecution, but aboveall the risk is not excludable hazards importantsafeguard goods in department, although aconsultation which the interests in the arrangements

meet the requirements formulated in the constitutionalprinciple holds for and expect an appropriate statutoryscheme. Such a solution can not support me.

Eichberger

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