German watchdog doubts constitutionality of data retention plans

Anti-surveillance protest, Berlin. [Markus Winkler/Flickr]

Germany’s Federal Data Protection Commissioner issued clear criticism against the government’s bill on data retention, saying it not only amounts to a disproportionate violation of Germans’ basic civil rights, but also those of Europeans. EURACTIV Germany reports.

The German government’s bill is “still not capable of” alleviating “considerable doubts regarding the general constitutionality” of data retention in telecommunications traffic, the Federal Data Protection Commissioner Andreas Voßhoff wrote in a 31-page position paper.

The bill intends to allow retention of connection data in telephone and internet communications for all citizens and systematic storage for 10 weeks, without any suspicion.

An earlier regulation on retaining data for six months was overturned by the German Constitutional Court (BVerfG). The same happened to a similar EU regulation before the European Court of Justice (ECJ). The revision, with shorter retention periods, is intended to account for previous concerns indicated by the judges. But Voßhoff has a very different view. In her position paper she writes that the bill does not completely comply with the conditions outlined by the BVerfG and the ECJ in their decisions on the constitutional organisation of such measures.

Voßhoff argues that a “brief and unconvincing argumentation simply ignores” the ECJ’s first explanation indicating the disproportionality of the provision’s interference with the basic right to respect private and family life in Article 7, and protect personal data in Article 8, of the European Charter of Fundamental Rights. This seems even more troubling considering the ECJ emphasised the outstanding importance of these fundamental rights on several occasions, she said.

>>Read: German government repackages data retention regulations

Furthermore, the bill does not take into account the fact that the BVerfG only permitted unjustified retention of telecommunication data in certain exceptional cases, Voßhoff writes. Due to widespread retention of IP addresses, a “very extensive data pool” is being created because of the provisions in the bill, she points out.

But at the same time, security agencies already have “far-reaching access options”, such as for IP addresses. Furthermore, Voßhoff says, not only has the current discussion on the “NSA” unquestionably revealed that comprehensive surveillance of internet traffic does not pose a problem for intelligence agencies, but that it actually takes place.

Voßhoff also issued harsh criticism against the legislative procedure. “Guidelines of the Joint Rules of Procedure of the Federal Ministries (GGO), stating that all parties to be heard must be involved in due time, were repeatedly ignored.” It is completely unacceptable, she indicated, that a legislative proposal resulting in “massive interference into the fundamental rights” of citizens which affects “absolutely core issues of data protection” is conducted virtually without their participation.

The controversial issue of data retention will not be voted on until after the Bundestag’s summer recess, said Social Democratic Party leader Thomas Oppermann on Tuesday (9 June) while attending a meeting of the SPD faction in Berlin. The earliest possible date would be in September, the faction indicated.

Data retention will be discussed in the Bundestag for the first time this Friday (12 June). But as of yet, there is no official schedule for continuing the parliamentary procedure. Still, there has been talk on various occasions indicating that a Bundestag resolution could be reached in June, or July.

The Green Party is among those criticising efforts to reintroduce data retention in Germany. In response to Oppermann, the Greens Parliamentary Chairman Britta Haßelmann explained on Tuesday that it amounts to “an unacceptable interference into civil rights”. She welcomed the later approval date. In this way, the SPD is accommodating her party’s calls for a real consultation procedure with extensive debate and a committee hearing, she said.

There is also opposition to the planned legislation within the SPD. It is expected to be a topic for debate at the SPD’s party convention on 20 June. Several proposals indicate hopes to forego the revision.

With a national effort on the retention of telephone and internet data, the German government hopes to end years of political conflict over the issue.

On 27 May 2015, the Federal Cabinet signed off on a bill drafted by Justice Minister Heiko Maas to introduce a storage obligation and a maximum retention period for traffic data. The bill plans to allow data retention for up to 10 weeks, rather than the original period of 6 months planned by the European Commission. The decision was preceded by a compromise between Maas and Internal Affairs Minister Thomas de Maiziere.

While Maas' Social Democratic Party (SPD) has tended to reject data retention for data protection reasons, the centre-right alliance and all German security agencies consider this measure a necessity in fighting crime.

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