SPD parliamentary group vice-president: Don’t bury data retention too quickly

The Federal Administrative Court has just rejected data retention without reason (VDS) as incompatible with EU law – according to the ruling, it can only be permitted under particularly serious circumstances, but the criticized Telecommunications Act does not address this restriction. Nevertheless, there are immediate efforts in politics to hold on to the VDS: the deputy chairman of the SPD parliamentary group, Dirk Wiese, believes that a legally compliant regulation on data retention is still possible even after the recent decision of the Federal Administrative Court. At the same time, he criticized Federal Justice Minister Marco Buschmann (FDP), who had interpreted it as an argument for the “quick freeze procedure” he favored. Wiese told the German Press Agency: “It really surprises me how some people in Berlin have read the Federal Administrative Court’s decision and even see it as a complete rejection of targeted IP address storage.”

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Exception: “Protection of national security”

Finally, the European Court of Justice (ECJ) stated that traffic and location data may well be stored generally and indiscriminately. This applies when it comes to protecting national security, combating serious crime or preventing serious threats to public security. “A justice minister cannot hide this from the public if he instead praises the inadequate quick-freeze procedure from his own company,” said Wiese. He added that if you don’t save anything, you can’t freeze anything.

The Federal Administrative Court had Unreasonable and comprehensive data retention is classified as completely contrary to European law. The decision published on Thursday was based on complaints from two telecommunications companies. Due to legal uncertainties, the regulation has no longer been used since 2017. The court held that there was no strict limitation to the storage of traffic and location data for 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 clearly defined in the Telecommunications Act.

FDP parliamentary group deputy Konstantin Kuhle warned on Saturday against “continuing to ride a dead horse” and called for legal clarity to be ensured now. “The data retention without cause has failed several times in court. The end of this blanket surveillance of all citizens is not premature, but more than overdue,” he told the German Press Agency. The legislature should give investigators the opportunity to store data on an ad hoc basis and thus protect fundamental rights. With the so-called quick freeze approach, prosecutors could be given a constitutional instrument.

Buschmann had stated that the decision made it finally clear that data retention in Germany is “entirely unlawful and therefore inapplicable”. He promoted the “quick freeze procedure” and said: “Investigating authorities can have relevant traffic data immediately frozen by the providers if they suspect a significant crime in order to use it later in the process.”

Buschmann and Federal Interior Minister Nancy Faeser (SPD) have been at loggerheads on the issue for months. Faeser and other proponents of a new, more specific regulation on data retention primarily cite the persecution of sexual abuse of children and young people as an argument. If relevant images are distributed online, the IP address is often the only clue to identifying the perpetrator.

(tiw)