The “Communication” BigBrotherAward goes to the Federal Minister of Justice, Ms Brigitte Zypries. Ms Zypries, you have been awarded for a bill that will introduce the retention of all telecommunications connection data in Germany, deliberately ignoring jurisdiction by the Federal Constitutional Court (Bundesverfassungsgericht, Germany’s highest court, whose tasks include ruling on the compatibility of individual laws with the constitution). The court had ruled in 1983 in its verdict on the census (Volkszählung, a census that was controversially designed to include the entire population) that the collection of non-anonymised data for undetermined or not-yet-determined purposes is unconstitutional.
The basis for your bill is an EU directive, officially named “2006/24/EG”. According to this directive, all member states have to oblige providers and operators of public communications networks to retain so-called traffic data. This registration of telecommunications users does not require a specific cause. The collected data are to enable unambiguous tracing and identification of both source and destination of a message by date, time, duration and type of message, as well as the determination of telecom equipment and location of mobile devices, such as a mobile phones. The storage is to last from six months to two years. Germany will have to implement this directive – if it stays in its current form. But this is doubtful, as Ireland is already pursuing an Action of Annulment at the European Court of Justice. A date for a decision has not yet been set.
The BigBrotherAwards jury acknowledges that the directive is binding for the German legislator. A refusal to implement it would lead to infringement procedures by the EU against the Federal Republic of Germany. We have also taken into account that some traffic data are retained even today by telecommunications providers, albeit only for accounting purposes. We are also aware, Ms Zypries, that in your bill you adopted the shortest retention time facilitated by the directive, i.e. six months.
But these considerations, Ms Minister, cannot quite exonerate you as a laureate: retaining traffic data without suspicion is evidently incompatible with the aforementioned jurisdiction by the Federal Constitutional Court. National judicature and European legislation are obviously in conflict here. This could have prompted you to work towards Germany joining Ireland's court action. At the very least, this should have been reason to postpone the bill until there is a decision in the European Court of Justice. If Ireland succeeds in overturning the EU directive, Germany will not be bound to implement it either.
Ms Zypries, we would have expected you to refuse to implement the EU directive in German law, even when faced with infringement procedures, for the following reasons: Information about who communicated with whom, at what time, for how long, and from where, is far too important in a free communication society to allow it to be retained in every case and without a basis. After all, this would inevitably imply holding the entire population under suspicion as the data could be needed for future criminal investigations. Everyone of us could break the law some time.
You also talk about “threat prevention” in connection with your bill. Does this mean you perceive every citizen as a potential threat? Additionally, you argue that the German secret services might find our data useful some time in the future. We could turn into public enemies (Verfassungsfeind, literally “enemy of the constitution”) within six months, and of course it would be, in your eyes, a pity if the spooks couldn't figure out our contacts of the last half year.
In 2005, the Bundestag (the Lower House in Germany’s federal parliament) already considered the question of data retention. After considerable controversy the idea was decisively rejected, not least because of its questionable compatibility with the constitution. The delegates were carried by the belief that the privacy of citizens' communication relationships is an elementary foundation of a democratic society based on unrestricted communication. They may also have heard the echo of the aforementioned census verdict: insecurity about the extent of data collection by the government may lead to a decline in the exercise of our basic rights.
It is our wish that the delegates of this election period, too, will not lose sight of how much our democratic, constitutional state depends on human dialogue being unrestricted and free of surveillance. We strongly appeal to every parliamentarian to reject your data retention bill!
Ms Minister, grant me one last word of warning. Three years ago you received a BigBrotherAward for holding on to the Major Eavesdropping Attack (Großer Lauschangriff, the German name for audio surveillance being used on private homes in the course of state investigations) as an instrument in criminal investigations. Should your track record concerning data protection not improve in coming years, the jury sooner or later will have to look into the possibility of nominating you for the unpopular Lifetime Award.
Until then – for a shameful second time – congratulations, Ms Zypries, Federal Minister of Justice.