INTERNET LAW - March 2008 German High Court Ruling Limits Data & Piracy Tracking

German music companies who had turned to methods used by the American recording industry to track down music pirates have been stopped by a new court ruling. The Federal German Constitutional Court issued its decision in the case supported by the "Arbeitskreis Vorratsdatenspeicherung" (Working Group on Data Retention) and 34 000 people who signed against the data retention directive. The case was decided on March 19, 2008. This decision does not entirely prohibit electronic communication companies from gathering data, but limits how the data can be used. The upshot is that data harvesting in order to detect wrongdoing can be transferred to law enforcement authorities, but only in cases of serious crimes and with a judicial warrant. Needless to say, music piracy does not rise to the level of a serious offense.

The case was filed on Dec 31, 2007 by opponents in a class-action suit, the biggest of its kind ever in Germany, and was heard by the state's highest court, the Federal German Constitutional Court. Werner Hülsmann, a  member of the Working Group said the coalition was pleased with the ruling, saying, "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."

The new data retention directive went into effect in January, but in this ruling the German Constitutional Court in Karlsruhe issued an injunction against it, declaring parts of the law unconstitutional until further review. The law had allowed the Government broad powers to access stored telephone and Internet data, such as e-mail addresses and detailed phone call information for up to six-months. 

The law was originally passed in the interest of counter-terrorism, but has caused controversy since it was installed in January, as it was decried by privacy advocates and civil rights groups saying it was overly broad. Opponents claimed the massive amounts of personal data the bill required to be stored would be vulnerable to misuse. Also, there were fears that private information might be handed over to foreign intelligence services, such as the CIA, which could then use the information in manners not allowed by German law.

Earlier this year, the Federal German Constitutional Court established a new "fundamental right" for privacy in regards to guaranteeing citizens surveillance-free computer systems. This court has also established limits on bugging homes, trawling electronic databases and tapping into computers of suspected criminals.

Now, data can only be made available in prosecuting or judging serious crime cases when other evidences cannot be accessed or the sum total is not enough. Also, the Government now must to send a report to the Constitutional Court by September 1, 2008 reporting on the impact of the data retention and how the new implementation regime is progressing.

The Merkel Government was not pleased with the ruling. Joerg van Essen from the opposition free-market liberal Free Democratic Party (FDP) said, "This is a serious blow to the federal justice ministry which until recently has been trying to play down the violation of basic rights of citizens by the data collection bill."

As well, the Working Group is demanding the resignation of the Minister of Justice, Brigitte Zypries.  Working Group member Patrick Breyer said,  "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."

Kelly O'Connell, IBLS Editor

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