The controversial data retention in Germany is a case for the European Court of Justice (ECJ). The Federal Administrative Court addressed the Luxembourg judges with a question on the interpretation of the European Data Protection Directive on Wednesday. They should clarify whether a general ban on nationwide, unrestricted data retention in Germany can be derived from the EU legislation.
Previously, the Leipzig judges had heard about lawsuits by Telekom and the Munich Internet provider SpaceNet against the data storage obligation orally (BVerwG 6 C 12.18 and BVerwG 6 C 13.18). The two companies are opposed to data retention.
The data retention has been contested for years, before German and European courts. The European Court of Justice (ECJ) is also currently dealing with the controversial storage of telephone and connection data, a verdict is expected in a few months.
Decisions from Münster and Cologne
In Germany, data retention currently only exists on paper. Two decisions have been taken from North Rhine-Westphalia to ensure that this is so. In the summer of 2017, the Higher Administrative Court in Münster decided, with reference to the position of the ECJ, that Spacenet would not have to store any data for the time being.
The administrative court in Cologne joined the decision the following year, when it negotiated the corresponding lawsuit of the Telekom. The German law violates European law, the judges decided: The provider would not have to save.
So the case had landed at the Federal Administrative Court. The Cologne court allowed the so-called jump revision there, since the next higher instance - the OVG - had already judged.
The Federal Network Agency had already suspended data retention after the first decision from Münster, by declaring that it would not enforce the storage obligation.
"Schrödinger's data retention"
"We like to call this state 'Schrödinger's data retention'," says Friedemann Ebelt of the civil rights association Digitalcourage: On the one hand, the data retention is dead and at the same time again not, just like the famous thought experiment from physics.
Ebelt and his association fight the data retention for years. Currently, they are doing this with a constitutional complaint that is designed to help overturn the law on data collection. Under the headline "Data retention, not yet again," the activists are campaigning for backing. Meanwhile, her complaint has a good 36,000 supporters. And it's just one of eleven constitutional complaints that have been filed since 2015 against the new edition of data retention.
For years activists, politicians, journalists and other citizens have resisted the data collection, which has long been considered a "zombie of network policy". "We want to finally talk seriously about alternatives, instead of having to raise this zombie again and again," says Ebelt. "There could already be a solution with more proportionate measures that would significantly limit data collection."