German Constitutional Court limits data retention law
(www.edri.org) The Federal German Constitutional Court issued a preliminary decision on 19 March 2008 in the case supported by 34 000 people against the German implementation of the data retention directive. The preliminary ruling has considered that parts of the act are unconstitutional pending review. The decision does not prohibit the electronic communication companies to gather the data, but limits its use, explaining that the retained data can be transferred to law enforcement authorities only in cases of serious crimes and with a judicial warrant. The data shall be made available only in prosecuting or judging serious crime cases when other evidences are not accessible or are not enough. At the same time the Government is obliged to send a report to the Constitutional Court by 1 September 2008 on the practical effects of the data retention and the implementation of the present preliminary ruling. The German Working Group on Data Retention, the NGO that initiated this protest, expressed their satisfaction about the preliminary decision and remained optimistic about the final result: "This is but a preliminary ruling. The Constitutional Court is traditionally reserved with regard to preliminary rulings. We remain confident that in cooperation with over 30.000 other applicants, we will be able to stop the surveillance of telecommunications in the absence of reasonable suspicion", declared Werner Hülsmann, member of the Working Group. The NGO also asked for the resignation of the responsible Minister of Justice, Brigitte Zypries. Patrick Breyer, member of the Working Group, explained the demand: "Mrs Zypries negotiated the data retention rules against the will of the German Parliament, agreed to an EU directive which lacks a legal basis and tried to impose data retention in Germany in violation of the clear jurisprudence of the Federal Constitutional Court. This intentional breach of our constitution disqualifies her as a Minister of Justice." The German Constitutional Court will take a final decision on the case later this year, waiting also for the European Court of Justice's decision in the action started on 6 July 2006 - Ireland vs. Council of the European Union, European Parliament (Case C-301/06). In the meantime, the Working Group gives recommendations on its homepage on how to circumvent data retention and asks citizens to take their deputies to task and ask them just how they intend to effectively prevent such violations of our constitutional rights in the future.