Germany moves closer towards bill on data retention

Taking the lead in the Western Balkans: Sigmar Gabriel. [SPD Schleswig-Holstein/Flickr]

After Social Democratic Party leader Sigmar Gabriel expressed his support for data retention, the country’s centre-right alliance is optimistic that the grand coalition can reach an agreement on the issue. EURACTIV Germany reports.

A sudden shift in the position of the Social Democrats on data retention has made the country’s centre-right alliance optimistic about reaching an agreement over a new national law.

A compromise is possible, said Wolfgang Bosbach, the chairman of the Internal Affairs Committee (Christian Democratic Union) on Monday (16 March).

“As we are no longer bound to the requirements of an EU Directive, we have our own scope of design,” Bosbach told the Passauer Neue Presse.

The fact that data analysis may only occur under a judicial resolution is quite clear, and was negotiated as such from the beginning, Bosbach said, referring to the SPD’s demands.

Implementation of the EU Directive was negotiated to include a minimum retention period of six months, he indicated. However, Bosbach explained, this does not mean that a shorter retention period cannot also be set.

Stephan Mayer, the Internal affairs spokesman from the Bundestag’s centre-right alliance, was certain “that a good solution can be reached with the SPD”. There are constructive talks, he said.

Optimism from the centre-right, which consists of the CDU, and its smaller Bavarian sister party the Christian Social Union (CSU), was preceded by a surprising move from SPD leader Sigmar Gabriel this week.

On Sunday (15 March), Gabriel, who also serves as Germany’s Economic Affairs and Energy Minister, spoke in favour of data retention, an issue which remains controversial within his party.

“I am convinced that we need this,” the Social Democrat said on the German radio station Deutschlandfunk.

“Data retention is not a panacea. It will not help us prevent all crimes at every opportunity,” Gabriel stated in the interview. But through faster detection of crimes, it can help prevent further offenses, he explained.

Gabriel called on Germany’s Minister of the Interior Thomas de Maizière (CDU) and Justice Minister Heiko Maas (SPD) to develop a legislative proposal which is in conformity with the constitution.

In recent years, both a German law on data retention and an EU Directive were overruled in the German Constitutional Court, and the European Court of Justice (ECJ) respectively.

>> Read: Germany’s debate over data retention flares following Paris attacks

A few weeks ago, the European Commission indicated that it was not planning a legislative proposal regarding data retention. However, the EU’s executive institution stated that every member state has the right to issue a national regulation.

Last week, constitutional courts in Bulgaria and the Netherlands overruled national laws on the groundless collection of communication data from all telephone and internet users.

SPD remains divided

In contrast to Gabriel, other high-ranking members of the SPD remain sceptical of data retention.

“We in the SPD are right to maintain a critical position on this, because previous regulation has been markedly problematic and has had many flaws,” said Yasmin Fahimi on Monday.

Asked whether she had changed her critical position on the subject, Fahimi said she had not. “No, nothing has changed about that,” she told Deutschlandfunk. Data retention can only exist if there is a threat of highly serious crimes, the Social Democrat stated.

Fahimi said she considered it likely that a bill could be presented within the first half of this year.

“Reasonable data retention within narrow bounds can be an appropriate instrument for faster elucidation of crimes like the killings carried out by the [National Socialist Union],” the SPD’s vice chair Ralf Stegner told the Passauer Neue Presse. But groundless and large-scale data retention will not be allowed by the SPD, he said.

“Whether” not “how” to conduct data retention

Meanwhile, the Working Group on Data Retention, an activist organisation, criticised the development. “Now we expect the SPD to reject once and for all the repeated comprehensive collection of our contacts, movements and internet connections,” Uli Breuer commented.

In this context, the Working Group on Data Retention rejected the proposal from Schleswig-Holstein’s data protection commissioner Thilo Weichert to introduce one-week data retention.

“It is not about the ‘how’ but, rather, about ‘whether’. With its decision from last year, the European Court of Justice determined that people should be protected from groundless collection of their communication data as long as they are not suspected of committing a serious crime,” Breuer said. “That also contradicts a ‘light data retention’ of IP addresses.”

Data retention refers to the storage of traffic and location data resulting from electronic communications. 

The main legislative instrument at EU level governing this field is the Data Retention Directive, which was adopted in November 2006 following the Madrid terrorist train bombings in 2004, and the public transport bombings in London in 2005.

These resulted in a text which gave room for different applications at national level, and which did not guarantee a sufficient level of harmonisation.

Data protection and privacy in electronic communications are also governed by the E-privacy Directive, which dates back to 2002, although it was slightly revised in 2009.

Germany, however, is still overshadowed by fear of government monitoring, due to the heavy surveillance of citizens practised in the Communist German Democratic Republic (GDR) and the Third Reich.

Germany and Belgium were taken to court by the EU, after refusing to implement the 2006 Data Retention Directive. The measure was overturned in April 2014.

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