Court Finds German Data Retention Law Unconstitutional

By Monika Ermert for Intellectual Property Watch

The German Constitutional Court today declared German data retention legislation a violation of the fundamental right to privacy of correspondence and telecommunication (Article 10 of the German constitution). The law that is a transposition of the EU data retention directive from 2006 therefore is null and void, said the court. Some 134,000 citizens, including many journalists, the Green Party, a former Minister of Justice (from the Liberal Party) and now acting Minister of Justice Sabine Leutheusser-Schnarrenberger (also Liberal Party) had filed complaints against the law. [Correction: nearly 35,000 people signed the complaint, and nearly 135,000 signing the e-petition against a blocking law for child pornography. Nevertheless, this was the biggest constitutional complaint ever.]

The judges decided that data retention was not unconstitutional as such. Therefore transposition of the EU directive is still possible. But data has to be strictly limited to crimes that mean a threat to life or freedom of individuals or a threat to the country or one of its federal states. Also data had to be stored decentrally and using the highest security level possible at any given time. Data from special groups like priests, doctors, lawyers, journalists should be exempted. Green Party leader Claudia Roth said the ruling was a “slap in the face” of the government which now has to go back and make a new law. Meanwhile Viviane Reding, new EU Commissioner of Justice in Brussels, has announced that all anti-terror laws have to be evaluated and checked for proportionality and necessity. The EU data retention directive is up for regular evaluation at the end of this year.