Difference between revisions of "BVerfG - 1 BvR 1873/13, 1 BvR 2618/13 (Bestandsdatenauskunft II)"

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|National_Law_Name_3=English Translation (non-binding)
 
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|National_Law_Link_3=https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0023
 
|National_Law_Link_3=https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0023
|National_Law_Name_4=Art 2 (1) in conjunction with Art 1 (1) and Art 10 (1) Grundgesetz (GG)
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|National_Law_Link_4=https://www.gesetze-im-internet.de/gg/index.html; English Translation (non-binding), https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0023
 
  
 
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The court held that § 113 of the telecommunications act (Telekommunikationsgesetz – TKG) regulating the transfer of customer data from telecommunication and internet service providers as well as several other provisions governing authorities’ access rights are incompatible with Art 2 (1) in conjunction with Art 1 (1) and Art 10 (1) of the German constitution (Basic Law – Grundgesetz – GG) for lack of consideration of the principle of proportionality. In particular, the bases for requiring transfer and access are not sufficiently specific and must be proportionate in relation to the type of data requested, including purpose limitation.
 
The court held that § 113 of the telecommunications act (Telekommunikationsgesetz – TKG) regulating the transfer of customer data from telecommunication and internet service providers as well as several other provisions governing authorities’ access rights are incompatible with Art 2 (1) in conjunction with Art 1 (1) and Art 10 (1) of the German constitution (Basic Law – Grundgesetz – GG) for lack of consideration of the principle of proportionality. In particular, the bases for requiring transfer and access are not sufficiently specific and must be proportionate in relation to the type of data requested, including purpose limitation.
  
The data in question is mainly so-called subscriber data (Bestandsdaten), referring to data linked to the conclusion or performance of a contract, as opposed to traffic and content data.  
+
The data in question is primarily so-called subscriber data (Bestandsdaten), referring to data linked to the conclusion or performance of a contract, as opposed to traffic and content data.  
  
  
 
==Comment==
 
==Comment==
The decision follows a first ruling on the legitimacy of Art 113 TKG and other provisions in 2012 (1 BvR 1299/05, “Bestandsdaten I”), in which the previous versions of many of the here challenged provisions were found unconstitutional for violation of Art 2 (1) in conjunction with Art 1 (1) GG (not Art 10 (1) GG).
+
The decision follows a ruling on the legitimacy of Art 113 TKG and other provisions in 2012 (1 BvR 1299/05, “Bestandsdaten I”), in which the previous versions of many of the here challenged provisions were found unconstitutional for violation of Art 2 (1) in conjunction with Art 1 (1) GG.
  
 
==Further Resources==
 
==Further Resources==

Revision as of 16:35, 27 July 2020

BVerfG - 1 BvR 1873/13, 1 BvR 2618/13 (Bestandsdatenauskunft II)
Courts logo1.png
Court: BVerfG (Germany)
Jurisdiction: Germany
Relevant Law:
Art 113 Telekommunikationsgesetz (TKG) and further laws regulating access of transferred data by specific authorities
Art 2 (1) in conjunction with Art 1 (1) Grundgesetz and Art 10 (1) Grundgesetz
English Translation (non-binding)
Decided: 27.05.2020
Published: 17.07.2020
Parties:
National Case Number/Name: 1 BvR 1873/13, 1 BvR 2618/13 (Bestandsdatenauskunft II)
European Case Law Identifier: ECLI:DE:BVerfG:2020:rs20200527.1bvr187313
Appeal from:
Appeal to: Not appealed
Original Language(s): German
Original Source: Bundesverfassungsgericht, Beschluss des ersten Senats vom 27. Mai 2020 (in German)
Initial Contributor: n/a

German Constitutional Court declares national provisions regulating access to telecommunication and internet service providers’ customer data (subscriber data) by federal authorities unconstitutional.

English Summary

Facts

Two individuals, plus approx. 6000 formally joining, brought constitutional complaints (Verfassungsbeschwerde) to the court, claiming that the challenged provisions of national law were violating their basic rights of informational self-determination and their right to privacy of telecommunications as guaranteed by the German constitution.

Dispute

Whether the challenged provisions regulating transfer and access of specific types of customer data (Bestandsdaten) to and by federal authorities are constitutional or too far reaching and hence violating basic rights.

Holding

The court held that § 113 of the telecommunications act (Telekommunikationsgesetz – TKG) regulating the transfer of customer data from telecommunication and internet service providers as well as several other provisions governing authorities’ access rights are incompatible with Art 2 (1) in conjunction with Art 1 (1) and Art 10 (1) of the German constitution (Basic Law – Grundgesetz – GG) for lack of consideration of the principle of proportionality. In particular, the bases for requiring transfer and access are not sufficiently specific and must be proportionate in relation to the type of data requested, including purpose limitation.

The data in question is primarily so-called subscriber data (Bestandsdaten), referring to data linked to the conclusion or performance of a contract, as opposed to traffic and content data.


Comment

The decision follows a ruling on the legitimacy of Art 113 TKG and other provisions in 2012 (1 BvR 1299/05, “Bestandsdaten I”), in which the previous versions of many of the here challenged provisions were found unconstitutional for violation of Art 2 (1) in conjunction with Art 1 (1) GG.

Further Resources

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Guiding Principles Leitsätze
to the resolution of the First Senate of 27 May 2020
- 1 BvR 1873/13 -
- 1 BvR 2618/13 - (inventory data information II)
(1) When setting up an information procedure, the legislator must, on the basis of its own competences in each case, create verifiable legal bases for both the transmission and the retrieval of data.
Transmission and retrieval regulations for inventory data of telecommunications service providers must sufficiently limit the purposes of use of the data and thus bind the use of the data to specific purposes, factual thresholds of intervention and a sufficiently important protection of legal interests.
2) The legislator of the transmission regulation is already responsible for the standard-clear limitation of the purposes of the possible use of data. A limitation of the purposes of use only together with the regulation of retrieval can only be considered if the transmission regulation concerns matters which are solely within the competence of the Federal Government and the regulations contain a clear and conclusive purpose of the use of data in their interaction.
3) The authority to retrieve data must not only be verifiable in itself, but is also - also for reasons of norm clarity - bound to the limited purposes of use specified in the transmission regulation. The legislator of the retrieval regulation is free to bind the retrieval of the data to further requirements.
(4) Despite their moderate weight of intervention, the general powers to transmit and retrieve inventory data for security purposes and the activities of the intelligence services generally require an initial suspicion of a concrete danger present in the individual case and for criminal prosecution.
1/92

 In view of their increased weight of intervention, the allocation of dynamic IP addresses must also serve to protect or enhance legal interests of particular importance. Furthermore, it requires a comprehensible and verifiable documentation of the basis for decision-making.
The existence of a concrete danger can suffice as intervention threshold in the area of danger prevention and intelligence activities, as far as the protection of legal assets or the prevention of criminal offences of at least considerable weight (all-common inventory data information) or special weight (allocation of dynamic IP addresses) is concerned.
2/92

 FEDERAL CONSTITUTIONAL COURT
- 1 BvR 1873/13 - - 1 BvR 2618/13 -
 I. 1. of Mrs. N.., 2. of Dr. B.,
- Representative: ... -
ON BEHALF OF THE PEOPLE
In the proceedings
via über
the constitutional complaints
 against
§ Section 113 of the Telecommunications Act, Section 22a of the Federal Police Act (Federal Police Act), Section 8d of the Act on Cooperation of the Federal Government and the Länder in Matters of the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Federal Constitution Protection Act), Section 4b of the Military Counter-Intelligence Service Act (MAD Act) as amended by the Act amending the Telecommunications Act and revising the information on stock data of 20 June 2013 (Federal Law Gazette I page 1602),
§ Section 7 (5 to 9), Section 15 (2 to 6) of the Act on the Customs Criminal Investigation Office and the Customs Investigation Offices (Customs Investigation Service Act) as amended by the Act on the Amendment of the Telecommunications Act and on the New Regulation of Stock Data Information of 20 June 2013 (Federal Law Gazette I page 1602), last amended by Article 4 of the Act on the Reorganisation of the Customs Administration of 3 December 2015 (Federal Law Gazette I page 2178),
 3/92

  § Section 2b of the Law on the Federal Intelligence Service (BND Act) in the version of the Law on the Amendment of the Telecommunications Act and on the New Regulation of Inventory Data Information of 20 June 2013 (Federal Law Gazette I page 1602), newly designated as Section 4 of the Law on the Federal Intelligence Service (BND Act) in the version of the Law on Foreign Telecommunications Intelligence of the Federal Intelligence Service of 23 December 2016 (Federal Law Gazette I page 3346),
§§ Sections 10, 40 of the Act on the Federal Criminal Police Office and Cooperation between the Federal Government and the Länder in Criminal Police Matters (Federal Criminal Police Act) as amended by the Act on the Restructuring of the Federal Criminal Police Office Act of 1 June 2017 (Federal Law Gazette I page 1354)
- 1 BvR 1873/13 -,
II. of Mr. S..,
and 5,827 other complainants
- Agent: ... -
  against
§ Section 113 of the Telecommunications Act, Section 7(3) to (7), Section 20b(3) to (7), Section 22(2) to (4) of the Act on the Federal Criminal Police Office and Cooperation between the Federal Government and the Länder in Criminal Police Matters (Federal Criminal Police Office Act), Section 22a of the Act on the Federal Police (Federal Police Act), Section 7(5) to (9), Section 15(2) to (6) of the Act on the Customs Criminal Police Office and the Customs Investigation Offices (Customs Investigation Service Act), § Section 8d of the Act on the Cooperation of the Federal Government and the Länder in Matters of the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Federal Constitutional Protection Act), Section 2b of the Act on the Federal Intelligence Service (BND Act), Section 4b of the Act on the Military Counter-Intelligence Service (MAD Act) as amended by the Act amending the Telecommunications Act and revising the inventory data information of 20 January 2006 (Federal Act on the Protection of the Constitution), Section 4b of the Act on the Military Counter-Intelligence Service (MAD Act) as amended by the Act amending the Telecommunications Act and revising the inventory data information of 20 January 2006 (Federal Act on the Protection of the Constitution) June 2013 (Federal Law Gazette I page 1602)
- 1 BvR 2618/13 -
the Federal Constitutional Court - First Senate - with the participation of the judges
Vice President Harbarth, Masing,
4/92

 Paul, Baer, Britz, Ott, Christ, Radtke
1. (a) Section 113 of the Telecommunications Act,
a. Section 22a (1) sentence 1, unless it refers to Section 21 (2) number 2, and (2) of the Federal Police Act (Bundespoli- zeigesetz),
b. § Section 7(5), first sentence and (6) and Section 15(2), first sentence and (3) of the Law on the Customs Criminal Police Office and the customs investigation offices (Customs Investigation Service Law),
c. § 8d para. 1 sentence 1 and para. 2 sentence 1 of the Act on the Cooperation of the Federation and the Länder in Matters of the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Federal Constitution Protection Act),
d. § Section 2b sentence 1 of the Federal Intelligence Service Act (BND Act) and Section 4b sentence 1 of the Military Counter-Intelligence Service Act (MAD Act), insofar as they refer to Section 8d (1) sentence 1 and (2) sentence 1 of the Federal Constitution Protection Act,
all in the version of the Act on the Amendment of the Telecommunications Act and on the Revision of the Inventory Data Disclosure Act of 20 June 2013 (Federal Law Gazette I page 1602) and
e. § Section 4 sentence 1 of the Federal Intelligence Service Act (BND Act), insofar as it refers to Section 8d (1) sentence 1 and (2) sentence 1 of the Federal Constitution Protection Act, in the version of the Act on Foreign Telecommunications Reconnaissance of the Federal Intelligence Service of 23 December 2016 (Federal Law Gazette I page 3346) and
f. § Article 10(1), first sentence, and (2) and Article 40(1), first sentence, insofar as it does not refer to Article 39(2), point 2, and (2) of the Act on the Federal Criminal Police Office and Cooperation between the Federal Government and the Länder in Criminal Police Matters (Federal Criminal Police Office Act) as amended by the Act on the Restructuring of the Federal Criminal Police Office Act of 1 June 2017 (Federal Law Gazette I, p. 1354)
adopted on 27 May 2020:
5/92

 are incompatible with Article 2(1) in conjunction with Article 1(1) and Article 10(1) of the Basic Law, depending on the grounds.
2. until a new regulation is adopted, but no later than 31 December 2021, the provisions declared incompatible with the Basic Law shall continue to apply in accordance with the reasons.
3 For the rest, the constitutional complaints are dismissed.
4. the Federal Republic of Germany shall reimburse the complainants for their necessary expenses arising from the constitutional complaint proceedings.
Table of contents
Rn.
A. Subject-matter of § 113 TKG 5 a) § 113 (1) sentence 1 TKG 8 b) § 113 (1) sentence 2 TKG 9
c) § 113 (1) sentence 3 TKG 10
d) § 113 (2) sentence 1 TKG 13 2. subject matter of the technical regulations 14 3. the challenged regulations 15 4. background 17
a) Decision BVerfGE 130, 151 17
b) New regulation of the inventory data information 19 II. The constitutional complaints 21 1. admissibility of the constitutional complaints 22 2. unconstitutionality of the regulations 23 a) § 113 TKG 24 b) Specialised retrieval regulations 29 III. opinions 34
6/92

 1. federal government 35
a) Significance and technical background of stock data information 36
aa) Statistical 36
bb) Technical development of IP address allocation 42
(b) Constitutionality of the rules 44
2nd Federal Commissioner for Data Protection and Freedom of Information 56
B. Admissibility 63
I. Subject matter of the appeal 64
II Partial inadmissibility of the constitutional complaints 66
III Admissibility of the constitutional complaints 69
1. power of appeal 70
(a) Possibility of fundamental rights being infringed 71
(b) Direct and present self-involvement in the provisions under attack
aa) Directness 73
bb) Present self concern 75
2nd Subsidiarity 76
(a) Scale 77
(b) Subsumption 78
3. period for appeal 79
a) Observance of the time limit with regard to the originally challenged proposals

...
(this translation is not complete due to technical problems)

Translated with www.DeepL.com/Translator (free version)