German constitutional challenge on data retention

( The complaint challenging the German data retention law in front of the Federal Constitutional Court in Karlsruhe has become the biggest constitutional case in German history with the submission of more than 34000 signatures backing up the action. The Working Group on Data Retention has also prepared an amicus curiae brief that it wants to submit to the European Court of Justice in the case Ireland vs. the Data Retention Directive and that can be signed by other NGOs.

In early February 2008, the German Federal Constitutional Court sent the application for the suspension of the data retention act to the Government, both chambers of the Parliament as well as the Governments of the Länder for comments. The court asked, among others, for confirmation of a study according to which, even before data retention was enacted, only 2% of the requests made by authorities could not be served by the service providers. The Federal Constitutional Court has announced it would decide on the application for an injunction in the month of March.

On 29 February 2008, the "Arbeitskreis Vorratsdatenspeicherung" (Working Group on Data Retention) submitted to the Court the mandates of over 34 000 citizens willing to fight againts the storage of their telecommunications over a period of six months. The complainants' mandates filling 102 folders and 12 packing cases were handed over to the Federal Constitutional Court in Karlsruhe on behalf of Berlin attorney Meinhard Starostik.

Afterwards, on the Platz der Grundrechte (Basic Rights Square), members of privacy NGO Working Group on Data Retention symbolically hang 17 theses for the defence of basic rights in modern times. Some panels read contrary statements by politicians such as the German chancellor Angela Merkel who said: "There must not be any space in which terrorists can communicate without the possibility of government access."

The members Working Group on Data Retention commented: "We demand that government and parliament initiate an independent review of all surveillance powers introduced since 1968 with regard to their effectiveness and adverse side-effects. We also demand a halt to new surveillance bills further encroaching on our basic rights. Among those plans are the surveillance of flight passengers, the central population register, biometric and electronic ID cards as well as police powers for the Bundeskriminalamt (Federal Criminal Police Office) including state spying into personal computers."

In a parallel activity, the German Working Group Against Data Retention has drafted an amicus curiae brief that is to be presented to the European Court of Justice regarding the action started on 6 July 2006 - Ireland vs. Council of the European Union, European Parliament (Case C-301/06). The amicus curiae brief is an attempt to add substantial arguments, as the Irish challenge is based only on formal grounds. The signatories claim that the data retention directive is first and foremost illegal on human rights grounds. They urge the court to base its decision on the incompatibility with human rights rather than the lack of competence and are explaining why the present text is breaching the right to respect for private life and correspondence (Article 8 ECHR), the freedom of expression (Article 10 ECHR) and the protection of property (Article 1 PECHR).

Other NGOs are invited to join the German Working Group Against Data Retention by signing the petition as well.

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