The Freename Forum

Following the failure of the ‘traffic light’ coalition, Interior Minister Nancy Faeser (SPD) has renewed her call for data retention without cause. With the votes of the CDU/CSU parliamentary group, she is hoping for a new legal regulation before the general election.

In October 2024, the then Federal Minister of Justice Marco Buschmann (FDP) pushed ahead with the ‘Draft Act on the Introduction of a Preservation Order for Traffic Data in the Code of Criminal Procedure’, which was intended to establish the ‘quick freeze’ procedure he favoured. In a revised Section 100g (6) of the Code of Criminal Procedure, the investigative instrument of a protective order for existing and future traffic data was to be introduced. In principle, the measure should only be authorised by order of a judge; this would limit the amount of data to be stored to what is necessary, as only the traffic data that already exists with the providers of telecommunications services for operational purposes and 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 would have required a new court order (‘unfreezing’). However, this is unlikely to happen: after Buschmann was dismissed from office at his request following the collapse of the traffic light coalition, Volker Wissing has now taken over the Federal Ministry of Justice until the next elections, which are expected to take place in February 2025.

Faeser is promptly pushing for IP addresses to be stored again in future. At the BKA Autumn Conference 2024 on 20 November 2024, she said: ‘In an international comparison, however, we have to conclude that the German law enforcement authorities are not up to date in terms of their technical powers. We fall short of our capabilities in many areas. One example of this is the issue of IP address retention. I am crystal clear in my position: we need this data.’ The Federal Constitutional Court and the European Court of Justice have pointed out corridors that can be utilised. In the analogue world, the police have access to the register of residents; in the digital space, this is not the case without IP address storage. ‘Despite this, it was unfortunately not possible to reach agreements on the necessary improvements in this legislative period, in particular due to a coalition partner. Improvements that even the ECJ now considers to be urgently needed. If it had been up to me, we would have implemented mandatory storage long ago. Others prevented it,’ said Faeser, taking a jab at the FDP and Buschmann. According to heise.de, Faeser is currently in talks with the CDU/CSU parliamentary group in the Bundestag, apparently in order to obtain the necessary majority in favour of data retention without cause; as recently as October 2024 (printed matter 20/13225), the CDU/CSU once again called for the minimum retention of IP addresses to combat serious crime to be regulated in accordance with ECJ case law.

In its ruling of 20 September 2022, the ECJ confirmed its case law according to which the German provisions 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. According to its own statements, 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 judgement of 30 April 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. Accordingly, 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.

Source (German): https://www.heise.de/news/Nach-FDP-Auss ... 08048.html