The start of a new coalition crash - now it's up to the Greens

Ideally, court decisions in a legal dispute have a pacifying effect. After the European Court of Justice (ECJ) this Tuesday dismissed the German law on data retention without cause as incompatible with European law, the issue should actually be settled - especially since the enforcement of the law from 2015 has been suspended since 2017 anyway, so it is currently is dead right.

In fact, however, the verdict only seems to be the start of a coalition crash within the traffic light government, in which Justice Minister Marco Buschmann (FDP) and Interior Minister Nancy Faeser (SPD) are facing each other. The liberal and the social democrat are apparently willing to continue a dispute that has lasted for around 15 years. It is about the fundamental conflict between freedom and security:

In the tradition of his pre-predecessor Sabine Leutheusser-Schnarrenberger (FDP), Buschmann is the civil rights attorney. Faeser takes on the role of sheriff, which was shaped by interior ministers such as Otto Schily (SPD), Wolfgang Schäuble and Thomas de Maizière (both CDU), who advocates more powers for the security authorities. Since the terrorist attacks of September 11, 2001, there have been a large number of these conflicts. Some have long since been decided, sometimes in favor of one side, sometimes in favor of the other.

The biometric passport was introduced, and the security authorities are coordinating their work in a joint counter-terrorism center. In contrast, initiatives such as the Aviation Security Act, which was supposed to allow the shooting down of a hijacked passenger plane, or the preventive dragnet search were permanently stopped by the judiciary.

The data retention project, however, still occupies politics and the courts to this day. It is about the plan to store telephone and Internet connection data from private providers without cause for a certain period of time and to grant the investigating authorities access to it in individual cases. The stored IP addresses, location or connection data from mobile phones should answer the question in criminal prosecution: who communicated with whom and when? While the focus was initially on investigating terrorism, today the fight against child pornography on the Internet is more of an argument.

In 2008, the Federal Constitutional Court suspended the first German law implementing an EU directive, initially as a temporary legal protection measure, and then declared it null and void in the main proceedings in 2010. However, the judges left a back door open: A storage obligation is "not absolutely unconstitutional", but "sufficiently demanding and standard-clear regulations with regard to data security, data use, transparency and legal protection" are required.

The situation at the European level is similar. In 2014, the ECJ initially overturned the EU directive, in 2016 the court declared the instrument of data retention to be incompatible with European fundamental rights. A cascade of judgments followed that dealt with national regulations in individual member states such as Sweden, Spain, Belgium, Ireland, Estonia, Great Britain or France - and stopped them or at least significantly restricted them.

But even this fundamental rejection by the ECJ of the instrument of data retention without cause left the Member States leeway. For example, the IP address – a type of digital address for Internet users’ end devices – can be stored without cause when it comes to fighting serious crime or threats to public safety. The remaining connection and location data can be retained without cause but for a limited space, which is limited to hubs such as train stations or airports.

Source: WORLD

The German data retention law of 2015 exceeded these limits, the Luxembourg judges ruled this Tuesday. A "general and indiscriminate retention of traffic and location data" is contrary to Union law. At the same time, however, the Court confirmed the possible exceptions to this principle. In the event of a serious threat to national security, "targeted data retention" is possible. "General and indiscriminate retention of IP addresses" for a "period limited to what is absolutely necessary" is also compatible with European law.

Because the coalition agreement is open to interpretation, these exceptions will now fuel the dispute between Faeser and Buschmann. The Minister of the Interior wants to exhaust the design leeway and allow the general storage of IP addresses for the prosecution of serious crimes: "The storage of data with which we can identify perpetrators is absolutely necessary - and according to today's judgment permissible."

The Minister of Justice wants to "quickly and definitively remove data retention without cause from the law," as he announced after the verdict. FDP parliamentary group leader Konstantin Kuhle calls data retention "a dead horse from which the Federal Minister of the Interior should quickly dismount".

The Liberals want to implement an old plan of their party colleague Leutheusser-Schnarrenberger, the so-called quick freeze procedure. Telecommunications providers can only be obliged to "freeze" data on individual users and, if necessary, "unfreeze" it in the further investigation process and make it available to criminal prosecutors if there is a concrete suspicion of a criminal offense and by judicial order. This procedure has been approved by the ECJ.

However, many investigators consider the process to be inadequate. What the coalition will ultimately agree on could therefore largely depend on the Greens. General data retention belongs “on the dustbin of history,” said the deputy leader of the Greens in the Bundestag, Konstantin von Notz – and thus sided with the FDP. Surprisingly, there was also headwind for Faeser from the SPD: parliamentary group leader Dirk Wiese spoke out in favor of quickly implementing the “quick freeze concept”.

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