Thu 24. Oct 2024, 17:09
Federal Minister of Justice Marco Buschmann (FDP) is going on the offensive when it comes to data retention: the bloggers at netzpolitik.org have published a draft bill that aims to establish the “quick freeze” procedure favored by the liberal party.
The legal situation seemed clear: in its ruling of September 20, 2022, the ECJ confirmed its case law according to which the German regulations on data retention are incompatible with EU law, as EU law precludes the general and indiscriminate retention of traffic and location data such as IP addresses. The ECJ clarified this case law in the “La Quadrature du Net” case due to French regulations on the protection of intellectual property on the internet, but ultimately relaxed it. In its ruling of April 30, 2024 (case no. C-470/21), the ECJ ruled that the general and indiscriminate retention of IP addresses does not necessarily constitute a serious interference with fundamental rights. According to this ruling, data retention is permissible if the national legislation prescribes storage modalities that ensure an effective and strict separation of the different categories of personal data and thus prevent precise conclusions from being drawn about the private life of the person concerned. A new debate promptly broke out in the traffic light coalition; while the Federal Ministry of the Interior under Nancy Faeser (SPD) is pushing for IP addresses to be retained, Buschmann is in favor of introducing the possibility of an ad hoc retention order for traffic data (“quick freeze”).
Buschmann emphasizes this wish with the “Draft of a law to introduce a security order for traffic data in the Code of Criminal Procedure”, which he recently submitted to the departmental vote and which is available to the activists of netzpolitik.org. In a revised Section 100g (6) of the Code of Criminal Procedure, the investigative instrument of a security order for existing and future traffic data is to be introduced. It should be permissible to secure such data on an ad hoc basis for the prosecution of serious criminal offenses, insofar as the traffic data may be of importance for investigating the facts of the case or determining the whereabouts of an accused person. In principle, the measure should only be permissible on the order of a judge; this would limit the amount of data to be stored to what is necessary, as only the traffic data already available to telecommunications service providers for operational purposes and which will be generated in the future may be secured (“freezing”). This data is to be available to the law enforcement authorities for a limited period of time for later collection and analysis; this requires a new court order (“unfreezing”). In the opinion of the Federal Ministry of Justice, this “quick freeze regulation” is in line with the case law of the European Court of Justice on data retention. The law enforcement authorities will be provided with a legally secure and effective investigative tool to combat serious crime in the digital space. The obligated companies should also be adequately compensated for their efforts.
De facto, data retention has not been carried out and used for law enforcement purposes in Germany for over 14 years. Whether and how many cases could have been solved if data retention had been in place is a matter of speculation, according to the Federal Ministry of Justice. In 2011, the Max Planck Institute for Criminal Law found in its study “Protection gaps due to the abolition of data retention?” that there are no such gaps in law enforcement. Since then, however, digital communication has become increasingly important; in many criminal proceedings, there are hardly any other investigative approaches available apart from digital traces.
You can find the netzpolitik.org article (in German) at:
https://netzpolitik.org/2024/statt-vorr ... ck-freeze/