notification_draft_2015_288_D_EN.DOC - -1 Status as at 22.05.2015 12:24 1-IND 2015 0288 D EN 20150707 PROJET Governmental draft of the Federal Ministry

notification_draft_2015_288_D_EN.DOC - -1 Status as at...

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- 1 - Status as at: 22.05.2015 12:24 1. ------IND- 2015 0288 D-- EN- ------ 20150707 --- --- PROJET Governmental draft of the Federal Ministry of Justice and Consumer Protection Draft Act introducing a storage obligation and a maximum retention period for traffic data A. Problem and objective Traffic data constitutes an important tool for the public authorities when investigating criminal offences and protecting against threats. Traffic data within the meaning of § 96 of the Telecommunications Act [German designation: TKG] is understood to mean data which accumulates through telecommunications, e.g. the call number of the participating connections as well as the time and place of a telephone call. It is not an issue of the content of the telecommunication but of whether the telecommunication has taken place at all and, if so, when. At present, the criminal prosecution authorities may collect data from telecommunications companies on the basis of § 100g of the Code of Criminal Procedure [German designation: StPO] where there are initial grounds for suspicion and a corresponding judicial order exists. This only applies, however, to data which accumulates in the future and to data that is still being stored at the time of the inquiry, for example, because it is still needed for commercial reasons. The storage period varies between individual companies, ranging from just a few days to many months. It therefore comes down to chance whether traffic data are still available or not at the time of the inquiry. This leads to loopholes during the prosecution of criminal offences and while protecting against threats and may, in a given case, lead to criminal investigations failing because further investigative approaches are not available. This state of affairs is difficult to reconcile with the importance befitting effective prosecution. The Federal Constitutional Court has repeatedly highlighted the requirement under constitutional law for effective prosecution, emphasised the interest in ascertaining the truth in criminal proceedings as fully as possible, and labelled the effective investigation of especially serious criminal offences as an important mandate of a constitutional community (Federal Constitutional Court Decisions 129, 208 <260> with further references). In order to change this state of affairs, it is necessary to introduce a statutory obligation for the providers of publicly available telecommunications services to store traffic data. However, a corresponding provision shall be subject to strict requirements regarding the scope of the stored data and data use on account of the infringements of fundamental rights associated with it. This provision must be limited to what is strictly necessary. A high standard must be prescribed in a legally transparent and binding manner in relation to data security.
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