Data retention: Tutoring from the ECJ for a dim-witted child named Federal Government

General and indiscriminate data retention is not compatible with EU law.

This is – once again – the operative part of the European Court of Justice. Since 20 the Luxembourg judges have been telling the EU member states every few years that they should monitor all citizens, regardless of whether they there is a suspicion against them, will not be waved through. The national governments never wanted to accept that. And so they tried to interpret the Luxembourg judgments with their own laws, only to keep banging their heads against the legal wall again and again. The federal governments of the Merkel era were no exception.

How slightly annoyed parents

Thanks in particular to comparatively short storage periods, the German data retention stipulated in the Telecommunications Act should ultimately somehow be European and be constitutional. A bit of general surveillance, that will probably be allowed!

Is not it. The judgment clearly states , the intervention in the Privacy is “serious in any case, regardless of the length of the storage period and the amount or type of data stored”.

In its judgment on Tuesday, the ECJ explained how slightly annoyed it was parents to their slow-witted child, with long paragraphs and sentences copied one-to-one from previous judgments, such as this: ‘As far as the aim of combating serious crime is concerned, the Court has ruled that national legislation requiring universal and indiscriminate data retention for that purpose of traffic and location data that go beyond what is strictly necessary and cannot be considered justified in a democratic society.«

The last half-sentence is a slap in the face for the grand coalition of 2015 and their successors who stuck to German law. Although today’s verdict was foreseeable, the current government has done nothing to prevent this slap in the face.

A back door remains open

In today’s judgment of the judges there is still a big but. The words “fight against serious crime” already refer to the not so small back door that the court is keeping open: There are scenarios even below the acute threat to national security in which data retention does not immediately collide with EU law. For example, if it is not used generally, but specifically, i.e. in relation to certain groups of people or places, and also remains limited in time (but can be extended). For IP addresses, not even the strict restriction to a group of people or place applies, only the time frame.

To be on the safe side, the judges also refer to other investigative techniques and data sources and thus explicitly give the “German government” a lesson in combating crime: “It should be noted (…) that the effectiveness criminal prosecution in general does not depend on a single investigative tool, but on all investigative tools that the competent national authorities have at their disposal for this purpose.« Various domestic politicians or even the President of the Federal Criminal Police Office had repeatedly claimed that many crimes went unpunished if their investigators cannot access stored IP addresses.

The judges now pointed out that the identities of SIM card buyers should be determined. And in addition to the data of suspects, there are others that could be interesting: “This includes the data of the victim and his social or professional environment.”

Meaning: So limited , as you always claim, you’re not at all, stop whining.

The big question is whether even in a traffic light coalition everyone will finally see that and grow up.

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