Server in Munich (symbol image)
Photo: Matthias Balk / dpa
An expert from the European Court of Justice put another bitter damper on data retention, which had already been put on hold in Germany, and strengthened the position of civil rights activists: Advocate General Campos Sánchez-Bordona, in his assessment on Thursday, reiterated the previous ECJ rulings, according to which the general and indiscriminate Data retention is only allowed if there is a serious threat to national security.
The background to the report is, among other things, the lawsuits brought by the Internet provider SpaceNet and Telekom. The two German companies oppose a requirement to store certain data for access by the authorities. The Telecommunications Act obliges Internet providers and telephone providers to record and save data such as IP addresses and phone numbers. However, the Federal Network Agency suspended the German regulation in 2017 - a few days before it came into force.
As early as 2014, the ECJ had rejected the German regulations on data retention that had been in effect until then as inadmissible.
They are incompatible with the EU Charter of Fundamental Rights, in particular with the fundamental right to respect for private life and the fundamental right to the protection of personal data.
In 2016 and 2020 the ECJ reiterated that data retention is a “serious interference” with fundamental rights.
It is therefore only permissible in severe threat situations.
Advocate General: Data retention is only permitted selectively
Countries like France, Belgium and Great Britain saw themselves deprived of an important instrument for combating serious crime and terrorism.
Meanwhile, Germany changed the telecommunications law.
In particular, the duration of the storage was further restricted and the access rights of the authorities were specified.
Nevertheless, SpaceNet and Telekom sued against the storage obligation.
After successes before the Administrative Court in Cologne, the Federal Administrative Court in Leipzig appealed to the ECJ.
Until a final ruling by the ECJ is therefore on hold in Germany.
The Advocate General recognized the German efforts to implement the ECJ case law.
Nevertheless, the new regulation also provides for general and indiscriminate retention of numerous traffic and location data.
The now planned stronger time limit "does not cure this deficiency," it says in the press release.
Apart from a threat to national security, data retention is only permitted selectively, i.e. specifically for certain people or connections.
The opinion of Sánchez-Bordona is not binding for the ECJ judges, but they often orientate themselves on it.
A judgment on the German regulation should be made in a few months.
pbe / dpa / AFP