Federal Interior Minister Faeser wants to store data – and is causing trouble in the traffic light coalition. The operators do not yet have to archive any user data. They complained about it. The European Court of Justice will decide this Tuesday.
Nancy Faeser’s request came as a surprise – a few days before an expected ruling by the European Court of Justice (ECJ) on data retention. The Federal Minister of the Interior told the “Zeit”: “The storage of data with which we can identify perpetrators is absolutely necessary”. According to Faeser, no perpetrator should feel safe on the Internet. With data retention, she wants to take action against pedophile criminals in particular. Several members of the Bundestag from the FDP and Greens referred the SPD politician to the coalition agreement via Twitter. It states that the traffic light wants to “design the storage because of pending proceedings in such a way that data is stored in a legally secure, event-related manner and by judicial decision.” No suspicion without a decision.
The coalition dispute is about to end a long legal battle for the time being. In 2015, the grand coalition wanted to introduce data retention. A law stipulated that telecommunications companies should store location data for four weeks and traffic data for ten weeks in order to better solve crimes. Actually, these are only cached for seven days for billing and service purposes. The providers Telekom and SpaceNet complained about the new law before the Cologne Higher Administrative Court, which agreed in 2018. As a result, the Federal Network Agency, representing the Federal Republic of Germany, filed a step-change appeal before the Federal Administrative Court, which in turn delegated the proceedings to the ECJ. He will decide on Tuesday whether the legislative proposal is compatible with European law. The 2015 law has not yet been applied because of the lawsuit.
Experts are also irritated by Faeser’s approach shortly before the verdict. “I think she has a lot of pressure from the house,” says Erik Tuchtfeld from the left-liberal, digital-political association D64. “Ultimately, we have a CDU-led interior ministry for 16 years. That has a certain impact. Instead of tackling the social causes to combat crime, more and more surveillance is required.” According to Tuchtfeld, the political efforts are even slowing down progress in the fight against crime on the Internet: “Because the Ministry of the Interior has insisted on data retention for over 10 years, which has been repeatedly overturned by national and European courts, there are still no effective tools to fight crime on the net. As a result, that makes Germany more insecure.”
Frederick Richter from the Data Protection Foundation also rejects data retention. He refers to a former law that was overturned by the Federal Constitutional Court in 2010: “Back then, the Federal Criminal Police Office called up stored data about 5,000 times in one year. And if you put that in relation to over 100 million SIM cards in Germany and 80 million landline connections , then the disparity shows up very strongly.”
According to Richter, the interior minister and her predecessors would use particularly morally despicable crimes – sexualized violence against children and terrorism – as justification. Ultimately, however, the risk of a leak or data misuse is considered to be more important. “A case of sexualized violence against a child in Wermelskirchen was cleared up because the perpetrator had long been in the sights of the authorities – without any data retention. Nevertheless, the state interior minister of North Rhine-Westphalia called for its introduction.”
In a survey conducted in nine EU countries last February for the pirate MEP Patrick Breyer, 51 percent of those questioned rejected data retention. 31 percent were in favor and 19 percent undecided. Almost half of the German respondents (45 percent) would not contact marriage counseling, psychotherapists or rehab if the contact was registered by telephone, mobile phone or e-mail. “That’s the so-called chilling effect. You don’t exercise your basic rights to the extent you’re entitled to because you’re afraid of disadvantages,” explains Richter.
There are alternative procedures, which the expert Tuchtfeld also considers to be data protection compliant. One is the login trap. Users could report potentially criminal behavior to platforms like Facebook and Twitter. If a prosecutor confirms the criminal liability, personal data of the perpetrators can be obtained in cooperation with internet providers when they next log on. In another procedure – the so-called Quick Freeze – the deletion of personal data, which currently takes place after seven days, can be suspended if there is an initial suspicion. Federal Minister of Justice Marco Buschmann from the FDP also prefers this method. In any case, according to Tuchtfeld, criminal prosecution on the Internet is personnel-intensive and requires a fundamental modernization of the authorities. “But you can’t say on the one hand that you want to actively fight crime on the Internet and on the other hand don’t make resources available for it.”
According to the experts, the federal government will have to look at alternative methods. They assume that the ECJ will declare the suspended law of 2015 void because it does not conform with European law. Any other judgment would surprise judges: “The ECJ has already commented on various national initiatives: Belgium, France, Sweden, and at that time Great Britain. And it has consistently made it clear for 12 years that it considers general data retention without cause to be contrary to fundamental rights.” Richter is therefore certain that not only the federal government, but all member states and the EU Commission will be looking to Luxembourg with great interest.
