The ruling scraps Germany’s current data retention rules and orders that all information gathered on the basis of existing legislation be thrown away. The constitutional justices lay down new ground rules. On the whole, they regard this whole business of stockpiling telecommunication data as highly suspect, deeming it a “serious infringement” of civil liberties “on a scale unprecedented in the German legal system”.
The ruling knows and describes all too well what can happen when every citizen’s telephone and Internet data are stored for six months and kept ready for the state to sift through. The ruling knows what looms when the state looks into who has called or sent e-mails or text messages to whom, when, where and how often. All this data can be used to “put together a serviceable profile on the personality and movements of practically every single citizen”, to figure out who plays what part in what group of anti-nuclear, anti-wind energy or anti-war activists – or protesting dairy farmers, demonstrating neo-Nazis or anti-Fascists, who is a ringleader, organiser, recruiter or follower.
Threat data retention poses to civil liberties
But the judges have proven half-hearted in drawing the logical conclusions. In fact, the ruling allows across-the-board storage and transmission of telecommunications data to go on in future as well. Based on the perils described in the judgment, however, the court should have issued a blanket ban on data storage. The justices didn’t dare go that far, however, because that would have triggered a legal battle with the European Union. Civil rights are not yet writ as large in Brussels as in Karlsruhe, and what the European Court of Justice will make of it remains to be seen. But the hour is fast approaching at which there will be no sidestepping the fray any more.
The judges should have pointed out that the EU directive prescribing data retention is not covered by EU law. But they didn’t lay a finger on the directive. The court is well aware of the potential threats that data retention poses to our civil liberties. That is why it inveighs and admonishes in its judgment and seeks to red-light any further encroachments on people’s privacy – at European level, too. Unfortunately, however, it is to be feared that all those warnings won’t do the trick. If across-the-board retention of telecommunication data is as dangerous as the constitutional justices have described – and their description is right –, then they shouldn’t confine themselves to mere warnings.