German lawmaker’s new attempt at data retention

Signs that the grand coalition wants to reintroduce a law on data retention have been apparent for quite some time. It was only in April that Heiko Maas, Minister of Justice, had first officially announced the project. Now, the blog internet.org has recently leaked the draft legislation on its website.

Data retention describes a legal obligation for telecoms providers to store their customers’ traffic data for a certain period without occasion. Law enforcement agencies can require access to these data under certain conditions. Traffic data comprises, inter alia, visited websites, start time and end of voice calls, participants to a call but not the contents of a conversation.

In 2010, the Federal Constitutional Court had quashed the law maker’s previous attempt at data retention in Sec. 113a, 113b TA, saying it violated telecommunications secrecy (Art. 10 of the German constitution). The court criticised too long retention periods (6 months), insufficient safeguards of data security and too little control provisos for authorities’ access to the data.

The new draft aims at complying with the Constitutional Court’s requirements. Traffic data shall be retained no longer than 10 weeks, and authorities can only access the data if ordered by a judge. In addition, the draft provides for a special protection of persons bound to professional secrecy (doctors, lawyers, priests etc.). Their traffic data is generally sacrosanct.

The new legislation has triggered a lively response in the media. Most companies and associations reject the bill. Experts doubt that it would stand up to a review by the constitutional court. There is no evidence that data retention actually contributes to greater safety, they say. Rather, government would criminalise the entire population without any specific occasion.

The justice department has circulated the draft to the federal states, associations and experts for comments. According to press reports, the government wants to push the bill through Bundestag before summer.