The European Court of Justice (ECJ) decides this Tuesday on data retention in Germany without cause. The EU’s highest court will deliver its eagerly awaited verdict, which could cause further discord in the red-green-yellow governing coalition. One thing is already clear: the decision will definitely make waves.
The so-called data retention is highly controversial. It is about the question of whether Internet providers and telecommunications providers have to store their customers’ data – for example IP addresses and telephone numbers – for access by authorities. This is provided for in the Telecommunications Act, which is currently on hold. While security politicians see it as a key tool in the fight against organized crime, child pornography and terrorism, civil rights activists and consumer advocates consider it an inadmissible invasion of privacy.
The background to the pending judgment is a legal dispute between the Federal Network Agency and the Internet provider SpaceNet and Telekom, which are opposing the storage obligation in the Telecommunications Act. The Federal Network Agency had already put this regulation on hold in 2017 after the Münster Higher Administrative Court decided that SpaceNet should not be obliged to store the data. That was a few days before the new rule was supposed to go into effect.
Data retention mostly overturned by ECJ recently
Now the ECJ is deciding – once again, one has to say, because the Court has regularly ruled on data retention in various countries in recent years and mostly overturned the national regulations. The line of the judges was quite clear: The storage of communication data without cause therefore violates EU law. An exception applies in the event of an acute threat to national security. In this case, a time-limited, justified data storage may be permissible. However, the concept of national security is narrowly defined: It was only in April that the ECJ ruled on data retention in Ireland that serious crimes such as murder are not included. In his opinion on the present German case, the ECJ Advocate General confirmed the previous judgments and strengthened the position of data protection officers. The Court often, but not always, follows the Advocate General’s assessment.
Even before the verdict is passed, it is clear that it will be difficult for the coalition to find common ground here. Because in the coalition negotiations, the FDP had pushed with power for an agreement to move away from data retention. The Greens are also critical of this instrument. Federal Interior Minister Nancy Faeser takes a different position. The SPD politician recently emphasized at the annual reception of the security authorities that the police and the Office for the Protection of the Constitution need state-of-the-art powers of intervention.
In the coalition agreement between the SPD, the Greens and the FDP last fall, a wording that left many questions unanswered finally ended up. There it says: “In view of the current legal uncertainty, the forthcoming judgment of the European Court of Justice and the resulting security policy challenges, we will design the regulations on data retention in such a way that data can be stored in a legally secure, event-related manner and by judicial decision.”
Buschmann relies on quick freeze processes
For FDP faction deputy Konstantin Kuhle it is clear: “The data retention without cause is a dead horse, from which the Federal Minister of the Interior should quickly dismount.” He thinks: “Saving all connection data of all people does not fit into a liberal democracy.” After all, the protection of civil rights is a common concern of the traffic light coalition, to which all coalition partners should feel committed.
Federal Justice Minister Marco Buschmann (FDP) is also a staunch opponent of data retention. Instead, he relies on a quick freeze procedure with a judge’s reservation. This means that a telecommunications provider would have to store data on individual users for a certain period of time if there was an initial suspicion. The ECJ has also judged this procedure to be lawful in recent years.
However, Quick Freeze is not explicitly mentioned in the coalition agreement. Many investigators do not consider this method to be a viable alternative to data retention – for example, when it comes to tracking down people who exchange images of sexual abuse of children and young people on the Internet.
