Several emergency motions against data retention have failed. Only for SMS do the judges make an important restriction.
Bar code as protest: The way for data retention is clear for the time being Photo: dpa
The controversial data retention can begin as planned in July 2017. The Federal Constitutional Court has now rejected two urgent applications for an immediate suspension of the law.
With data retention, the telephone and Internet connection data of the entire population must be stored without any indication at the telecoms companies. For ten weeks, they will record who has called whom and when, and who has dialed into the Internet and at what IP address. The location of all cell phones will be stored for four weeks. Content may not be recorded.
Two emergency motions were filed in Karlsruhe against this law, which was passed by the grand coalition in the Bundestag in October 2015. One came from the FDP federal association and 19 other liberal politicians. The other motion came from 22 Berlin lawyers, journalists and MPs from various parliamentary groups.
The applications were unsuccessful, the Constitutional Court now declared in two 13-page decisions. It is true that data retention can have a "considerable intimidating effect" because it creates the feeling of being "constantly monitored. In an impact assessment, the court nevertheless argued against a temporary halt to the law, as the data may only be used to investigate and prevent serious crimes.
Only in the case of text messages did the judges make an important restriction. The plaintiffs had complained that connection data and communication content could not be technically separated. In this case, the judges ruled, SMS should not be stored at all.
Hearing in the main case still to come
It is not yet clear when the judges will rule on the main issue of data retention. There are currently seven constitutional complaints in Karlsruhe. Further complaints can be filed until December. However, the court did not indicate in its urgent decisions that the lawsuits could succeed.
In the first attempt by the Bundestag to introduce data retention in Germany, Karlsruhe had issued a temporary injunction in 2008. According to this, the data could be stored but not used.
When the court then declared the law unconstitutional in the main proceedings in 2010, all data had to be deleted. At the time, Karlsruhe had demanded that the data be better secured and that it only be used to protect "paramount legal interests".
For a long time, however, there was no political majority for a new version of the law. In particular, the then Federal Minister of Justice Sabine Leutheusser-Schnarrenberger (FDP) blocked it. Current Justice Minister Heiko Maas (SPD) was also an opponent of data retention, but then followed SPD leader Sigmar Gabriel in pushing for the law.
Transition period for companies
Currently, there is no data retention yet. Telecom companies were still given a transition period until July 1, 2017, to create the massive storage capacities required.
It will be eagerly watched how the European Court of Justice (ECJ) deals with national data retention laws. In 2014, he had declared the corresponding EU directive null and void on the grounds that it was disproportionate. Next Tuesday, the Advocate General at the ECJ will present his recommendations on data retention in Sweden and the UK.