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Data Protection

Data retention sticking point for Germany

The European Court of Justice's ruling that data retention practices go against basic privacy rights for Europeans has unleashed debate among German politicians on how to change national rules.

Data protection advocates celebrated the European Court of Justice's (ECJ) ruling Tuesday (08.04.2014). Judges in Luxembourg were quite clear: mass retention of citizens' telecommunications data greatly interferes with Europeans' fundamental rights.

The preliminary judgment essentially axed a 2006 European Union regulation requiring retention of telephone and Internet traffic for six months to two years, ostensibly for security purposes. Such data retention is a "particularly serious interference" in fundamental rights to privacy, while lacking proper controls, judges wrote in their decision.

Personal privacy is a touchy topic in Germany, with its history of violations by special government services during the Nazi era and Soviet-influenced rule in former East Germany. Proponents of data retention, however, argue that the amount of crime increasingly being organized on the Internet requires greater judicial intervention.

IT expert Felix Freiling of the Erlangen-Nürnberg University in Germany said it's obvious that the Luxembourg ruling will provide new fodder for debate. "It's already being intensively discussed on the Internet again," Freiling told DW. "That's quite important - the topic belongs in the public realm," he added.

One judgment, many interpretations

Thomas de Maiziere and Heiko Maas (Photo: Kay Nietfeld/dpa)

De Maiziere and Maas will have plenty to discuss

It's up to EU member states to implement the high court's decision. The Luxembourg ruling is likely to reheat debate within Germany's governing coalition, as Germany is currently the only EU country lacking a law governing the length of time data is allowed to be retained.

In a similar ruling to that of the ECJ, the German Constitutional Court in 2010 namely shot down such a law allowing data to be retained for six months. The conservative portion of the government coalition has for years sought new data retention rules, in fact requiring their social democratic partners to agree to this upon forming the current coalition in 2013.

But many critics of data retention remain among the ranks of social democrats - which is likely to slow down any new legislation. Justice Minister Heiko Maas had wanted to wait for the ECJ ruling - and now he's completely pulled the handbrake. "There's no reason anymore to quickly produce a draft law," Maas told journalists in Berlin.

Almost simultaneously, Interior Minister Thomas de Maizière of the conservative CDU clarified a need for further negotiation. "I insist upon quick, clever and constitutional new regulations that have majority appeal," de Maizière said in Berlin.

Conservative politician Hans-Peter Uhl agreed. "We'll have a close look at the ruling," he told DW. "And we will once again hear from experts who tell us that many serious crimes cannot be combated in any other way," Uhl added.

Back to constitutional court?

Judges of German Constitutional Court (Photo: Winfried Rothermel)

The German Constitutional Court may end up revisiting the topic

And so, coalition partners in the German government appear to be gearing up for a fight. But it is even possible to develop a law that would include the strict controls indicated in the ECJ's ruling?

Georg Jochum, an expert on European law at the University of Friedrichshafen, believes it is. "Data retention per se is compatible with fundamental rights," he told DW - when, as emphasized by the EU court, retention is limited to the required measure.

But other questions remain to be answered, like who gets what kind of access to the data. "Can the Federal Criminal Agency simply look at whatever is stored, or must a judge decide? How concretely will I, as someone affected, be able to check how my data is being used? Can I claim damages if there is abuse?" Jochum asks.

Erasing data?

Ulla Jelpke (Photo: Lichtblick/Achim Melde)

Jelpke has demanded that saved data be erased

Green and left-wing parties, which make up the opposition, see the ECJ ruling as a confirmation of their complete rejection of data retention. Some would even like to see implementation taken a step further: "All EU countries should actually reverse data retention, and erase what they've saved," said The Left party spokeswoman Ulla Jelpke. She also indicated strong opposition to any new draft national law.

Green spokesman Konstantin von Notz expressed an even more direct sentiment: "In light of the NSA affair, I wish the coalition a pleasant journey to the constitutional court in Karlsruhe."

Freiling thinks that sooner or later, a new law will be drafted, to possible mixed public review. "The ECJ established clear guidelines in its ruling - in that sense, it's a good day for data protection," he added.

The European Commission, for its part, will also be examining the ruling. "The European Commission will now carefully asses the verdict and its impacts," Commissioner Malmström said in a statement - leaving unclear whether or not the commission intends to set new rules.

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