Warning: Beware of the German EU Council presidency

Despite clear court decisions, pending constitutional complaints (German Wikipedia) and ongoing criticism, the obligation to store mass communication data without cause has been enshrined in the current draft of a new telecommunications law (§ 166, draft of the law at netzpolitik.org).

Although the EU Court of Justice is currently examining the compatibility of unsolicited data retention with EU law in several cases and the Federal Administrative Court has suspended data retention in Germany as illegal (for details see our chronology of data retention), the German government still wants to push through an unsolicited data retention obligation. Communications providers are to store telephone and Internet connection data for 10 weeks and location data for 4 weeks – of all people, at any time, of day or night.

In June 2017, the Higher Administrative Court of Münster decided that this would amount to a blanket recording of "traffic and location data of almost all users of telephone and Internet services ". This is contrary to EU law. A solution was required

"that from the outset restricts the group of persons affected by the data retention to cases where there is at least an indirect connection with the prosecution of serious criminal offences or the prevention of serious threats to public security as intended by the law" (see ovg.nrw.de).

The German government ignores this decision.

We warn against the legislative style of the German federal government, which ignores criticism as well as court rulings. We assume that during its Presidency of the Council of the EU, Germany will use every opportunity to push ahead with legislation on blanket data retention, for example by further increasing the pressure on the EU Commission or by using further cases of the most serious crimes to justify blanket data retention.
(See these recent examples, all in German: child abuse case in June 2020, kidnapping case in Berlin by Vietnamese secret service (July 2017), brought before the EU Court of Justice in September 2019 and racist attack of Halle in October 2019)

With its stance, the German government prevents discussions about alternative solutions such as quick freeze. We warn against the German EU Council Presidency because German policy could lead to EU-wide data retention on the German model and prevent necessary, effective and fundamental rights conserving solutions.
The German Presidency of the Council of the EU begins on 1 July 2020, see eu2020.de and wikipedia.org.

Digitalcourage maintains that plans for EU-wide data retention must be stopped immediately. Blanket data retention is incompatible with a democratic constitution because it enables mass surveillance and other abuse. We demand:

• A ban on blanket data retention in the EU;
• All efforts to introduce data retention without cause must be stopped.
• An internal working document of the EU Council (analysed on netzpolitik.org) shows that the EU Council is not in a position to act on this issue: In many member states the legal evaluation of data retention has not yet been completed. In Germany, for example, Digitalcourage has lodged a constitutional complaint against the corresponding law. As long as courts are still busy reviewing previous case law, no new data retention laws may be negotiated.
• There are proportionate alternatives to data retention without cause, such as quick freeze. Such possibilities must be examined adequately.

• Digitalcourage: Chronology of data retention
• Digitalcourage: Data retention: one-page study of the EU Commission
• 26.06.2020, heise.de: EU Council Presidency: Germany wants more digital sovereignty
• 10.2.2020: EU data retention: Digitalcourage publishes and criticizes position of the Federal Government