The Federal Administrative Court has drawn a line under the years-long dispute over data retention. The judges found the previous German regulation to be unlawful.
The Federal Administrative Court has the authority to retain data across the board without any reason classified as completely contrary to European law. The court in Leipzig announced that the regulation should no longer be applied. The decision was based on lawsuits from two telecommunications companies.
Regulation no longer used since 2017
Due to the legal uncertainties, the regulation had not been used since 2017. The Federal Administrative Court had temporarily suspended the legal proceedings and submitted questions to the European Court of Justice (ECJ) about the compatibility of data retention with EU law.
The ECJ decided in 2022 that the communication data of all citizens may not be stored without reason. However, targeted and time-limited storage of data is possible in the event of a serious threat to national security. According to the ECJ, it may also be possible to retain IP addresses in order to combat serious crime.
Federal Administrative Court followed ECJ decision
The Federal Administrative Court followed these guidelines in its published decision. According to this, the regulation in the Telecommunications Act for the storage of telephone numbers, IP addresses or the duration of connections “does not meet the requirements of EU law because no objective criteria are determined that establish a connection between the data to be stored and the goal pursued.” the court.
The storage of traffic and location data is not strictly limited to the purpose of protecting national security. Although IP addresses may be stored to combat serious crime and prevent serious threats to public security, this is not so clearly defined in the Telecommunications Act.
Buschmann: “unlawful and therefore inapplicable”
Federal Justice Minister Marco Buschmann (FDP) said that with the court’s decision it was now finally clear that data retention in Germany was “entirely unlawful and therefore inapplicable”.
The current decisions are a clear mandate for us to quickly remove data retention from the law – and to further strengthen digital civil rights in our country.
Buschmann referred to the traffic light government’s coalition agreement, according to which relevant data should only be stored “in a legally secure manner and based on a court order”. In this context, Buschmann once again promoted the so-called quick-freeze procedure: Investigating authorities could “immediately have relevant traffic data frozen by the providers if a serious crime is suspected in order to use it later in the process,” explained the Federal Minister of Justice.
Hesse’s Minister of Justice: Regulations are still necessary
In contrast, the Hessian Justice Minister Roman Poseck (CDU) emphasized that both the ECJ and the Federal Administrative Court had “explicitly” opened up scope for the storage of IP addresses in order to combat the most serious crimes. “For these areas, federal regulation is still possible and urgently necessary so that cases of terrorism and child abuse can be successfully combated.” Poseck also added: “Data protection must not lead to protection of perpetrators in these cases.”
Bavaria’s Justice Minister Georg Eisenreich also pointed out the limited scope for storing IP addresses. The CSU politician said that these must be used promptly to protect children if there are indications of abuse. In some cases, IP addresses are also “the most important or even the only lead” when tracking terrorists, arms traffickers and drug traffickers.
Herrmann: “Completely exaggerated data protection”
Bavaria’s Interior Minister Joachim Herrmann (CSU) became much harsher in his tone and accused the Federal Justice Minister of “refusal to work at the expense of victims of child abuse.” The ECJ expressly allowed IP addresses to be secured to combat child pornography and sexual abuse. Nevertheless, the federal government remained inactive for a year. “Completely exaggerated data protection” apparently has more priority for Buschmann than child protection, said the CSU politician.
The German Journalists Association welcomed the decision from Leipzig. Federal Chairman Frank Überall explained: “There is finally legal certainty for journalists who were particularly affected by data storage due to their professional nature.”
(Ref.: BVerwG 6 C 6.22 and BVerwG 6 C 7.22)