Enlarge image
Internet users: Governments do not want to rely solely on the IP address to store connection data
Photo: Oliver Berg / picture alliance / dpa
No data retention is an alternative either - this is apparently still the prevailing opinion in the EU member states. It is true that the previous rulings of the European Court of Justice (ECJ) on the storage of connection data without cause limit the scope for a corresponding directive. But most member states want to take advantage of this. Some would dare to go it alone if necessary. That emerges from a current German diplomatic report to the Federal Foreign Office, which SPIEGEL has received.
The so-called diplomatic correspondence summarizes the results of a query initiated by the EU Commission last summer.
The initial question at the time was: Do the member states even need an EU directive on data retention and, if so, how should it be structured?
24 governments responded, seven of them - including Germany - also made their responses public.
However, because not all countries were willing to do so, the summary of the survey results was anonymized.
Which country responded and how remains unclear for the time being.
According to the document, the six key results are:
"A European instrument should not be more stringent than the requirements of the ECJ," the document summarizes the majority position.
You have to interpret it like this: An EU directive must exhaust everything that the judicial rulings just allow.
Five member states have spoken out in favor of “a purely national approach to regulating data retention”, while a sixth has at least shown itself to be open to this.
"Several" countries would prefer a national regulation at least if an EU-wide regulation does not fully exploit the scope permitted by the courts.
When it comes to national security, the majority of member states reject an EU regulation because the area falls within their sole competence.
Explanation: In October 2020, the ECJ ruled that governments may order data retention for a limited time in cases in which the national security of a country is acutely threatened.
However, this must then be checked by a court or an independent authority.
Due to technical and legal concerns, the federal states consider the targeted storage of data - i.e. only certain data from certain areas, periods or groups of people - as an alternative to permanent storage as a "theoretical possibility" that "cannot be implemented in practice".
The so-called quick freeze process favored by the FDP, in which telecommunications providers have to quickly secure connection data on a specific occasion and by order of a judge, has so far only been implemented in one country and is considered "unsuccessful" there. The other member states also think little of the procedure because they do not want to make themselves dependent on what data the providers save for criminal prosecution.
The majority of EU governments - including the then black and red federal government in the summer - do not want to rely solely on the IP address when storing Internet connection data.
Since many users are sometimes assigned the same IP address, other technical features would have to be saved, such as the port number, the IP address of the addressee and the time stamp.
Waiting for the verdict
However, the member states also agree that they want to await the outstanding decisions of the ECJ on data retention.
In November, the responsible Advocate General at the ECJ presented his opinion on the German regulation and classified it as unlawful to the EU.
His assessment is not binding for the judges, but they often follow the opinion.
The verdict is expected in the coming months.
In addition, the ECJ still has to make decisions on submissions from Ireland and France.
Federal Justice Minister Marco Buschmann (FDP) wants to get rid of the German regulation, which is currently on hold, anyway.
"I reject the unjustified data retention and would like to delete it from the law for good," said Buschmann shortly before Christmas: "It violates fundamental rights."
In the coalition agreement between the SPD, the Greens and the FDP, however, there is no blanket rejection of data retention.
On page 109 it only says: "In view of the current legal uncertainty, the impending judgment of the European Court of Justice and the resulting security policy challenges, we will design the regulations for data retention so that data can be stored in a legally secure manner and by judicial decision."
