Preventive Phone, Internet Tapping Held Unconstitutional in Germany
A German high court ban on most preemptive tapping of phone calls, e-mail and other communications could empower opponents of retention of communications traffic data. The challenged state law, enacted by Lower Saxony, authorized police to eavesdrop on citizens and process cellphone traffic and location data, e-mails and SMS traffic even without suspicion of crime. But the Federal Constitutional Court held the law unconstitutional, saying preventive surveillance must be based on reasonable belief a specific crime is planned. At least one other state reportedly has such a law and others are said to be considering them.
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The ruling prompted German competitive telcos to warn govt. officials there not to use the European Union (EU) data retention debate to bypass privacy concerns. Given the ruling, EU plans to force communication services providers (CSPs) to retain Internet and telecom traffic, connection and location data need review, the German Assn. of Providers of Telecom and Value-Added Services (VATM) said.
While questions remain on the underwriting, use and constitutionality of data retention, “the Federal Government should not use the backdoor of the EU to circumvent the unanimous vote of the German Federal Parliament and the concerns under the constitution by an EU measure,” said VATM Managing Dir. Jurgen Grutzner. Germany’s federal parliament has nixed mandatory data retention, he said, and yesterday’s decision brings the trend of making telephony and traffic data surveillance a standard tool of police investigations to “a grinding halt, at least for the time being.”
Two data retention proposals are floating in EU corridors. The first, a compromise framework decision pushed by the Justice & Home Affairs (JHA) Council and Presidency, calls for a 12-month retention period for all communications traffic data. It would allow member states to require retention up to 48 months and takes a 2-step approach in which retention would start with telephony data and extend later to Internet data. The 2nd, a European Commission (EC) directive leaked this week, would require CSPs to hold at least 6 months’ data on communications “using solely the Internet Protocol”, and 12 months fixed and mobile phone traffic and location data (WID July 27 p5).
The 2 drafts will move forward in parallel while justice and home affairs ministers try to agree on the need for data retention and its scope (WID July 14 p6). The council version long has been reviled by privacy advocates, CSPs and European Parliament (EP) members, who rejected it in June. The EC version is proving similarly controversial; this week civil rights advocates launched an online campaign against it (WID July 28 p7). By Thurs. afternoon the petition had drawn nearly 4,600 signatures.
If the EC directive is approved, all EU member states must put it into national law. However, the measure’s constitutionality could be challenged in court like any other law, said Axel Spies, a German attorney in Washington who represents the VATM. Moreover, he said, if the EP believes it was bypassed wrongly in the lawmaking process, it could attack the directive in the European Court of Justice.
But if the Council framework decision wins the day, it will apply automatically to each member state, Spies said. He said ministers must be unanimous in their support for any decision under justice and home affairs regulations called the “3rd pillar.” In view of Tues.’s court ruling, Spies said, telcos wonder if the German govt. will “have the guts to vote in favor of data retention at the Council” because loss of a court challenge is foreseeable.
However, Spies said, with federal elections set for Sept. -- and the govt. perhaps unwilling to be blamed for giving terrorists room to flourish -- Germany could go along with the Council proposal. It’s also possible the Council will fail to win ministers’ unanimous backing, and the EC directive will be adopted.
The EC intends to give full co-decision rights to the EP regarding the directive, European Digital Rights (EDRI) reported. But the JHA Council has made clear it won’t withdraw its framework decision and “has vowed to reach (unanimous) agreement in the formal JHA Council” Oct. 12. “The tension will probably reach a climax in Newcastle [U.K.]” Sept. 8-9 during an informal JHA meeting, EDRI said.