German Court Ruling Strikes Another Blow Against War on Terror
Last Tuesday, barely three weeks after the European Parliament voted to annul the EU-U.S. SWIFT agreement on bank data sharing, Germany’s Constitutional Court struck another major blow against counterterrorism efforts by overturning a law that required telecommunications firms and internet providers to retain basic communications data for a period of six months.
Indeed, the court did not merely overturn the requirement to retain the data. It ordered the data to be deleted, thus setting in motion what appears to be a frenzied process of data destruction at German telecommunications and IT firms.
The German data retention law served to implement the minimum data retention requirement laid out in a 2006 European Union directive. The directive was jointly approved by both the European Council, representing the EU member states, and the European Parliament. It was adopted in the aftermath of the July 2005 London transport bombings and in recognition of the major benefit that basic communications data provides to law enforcement agencies in connection with terror investigations, as well as investigations into organized crime. The directive notes, for instance, that
On 13 July 2005, the Council reaffirmed in its declaration condemning the terrorist attacks on London the need to adopt common measures on the retention of telecommunications data as soon as possible.
The data concerned is exclusively framework data that is “generated or processed in the course of the supply of communications services:” information such as calling phone number, called phone number, subscriber name, user ID, IP addresses, and so on. The directive only applies to electronic communications, whether by phone or e-mail. It does not apply to other internet usage data: for example, on surfing habits or consulted web pages. Moreover, the directive expressly prohibits the retention of the content of any communications.
The directive lays down a minimum retention period of six months and a maximum period of two years. After the end of the period established by each member state, the data in question must be destroyed. The establishment of the two-year maximum represents an obvious obstacle to long-term investigations into terror or organized crime. It is clear that it was a subject of controversy in EU negotiations, since the directive also lays down that member states may under particular circumstances apply for an extension.
I, for one, am greatly relieved by this and the EU parliament’s decision. ”Those who sacrifice a bit of liberty for a bit of security…”
“…overturning a law that required telecommunications firms and internet providers to retain basic communications data for a period of six months”
If you believe in he Constitution of the United States, you should applaud this.
#2 Robert V – I agree, and I’m a Conservative (with libertarian leanings).
If they want this data, they need to get warrants ahead of time, just like the need to get wiretaps ahead of time. Passing a law that would allow them to target terrorists and their organizations would be a good step. Then the courts could give warrants ahead of time for specific phones, websites, etc….
Of course, they may have done just that. I don’t know enough of what’s been done or not. So, this ruling may be bad.
I fail to see what liberty right has been sacrificed when there is no right to privacy on the Internet? If you think your Emails have a right to privacy you are sorely mistaken. And that probably explains the EU decision: what politician would want a 6 month record of their Emails subject to ad hoc disclosure, either by hacking or a “deep throat? “
We´re not talking about wiretapping. We´re talking about telecommunication data, i.E. numbers, which number called which number, which ip adress went where and such. The spoken word on the phone is of course not stored. Mostly this is data the telecommunications firm has to store anyway because they need it to bill their clients. The law just says this data has to be stored for six months.
Why is this data important to prosecutors? To follow crime and terror networks. You find out a phone number a criminal or a terror suspect uses, you´d like to know whom he did call and how long, to get clues that might lead prosecutors to other criminals and terrorists. Especially in fighting terror knowing the networks is very important.
From my point of view the consitutional court of Germany has become somewhat erratic, allowing the anti-democratic lisbon treaty but then striking down rather minor infractions on personality rights such as this.
The newly appointed judge replacing the retiring president is also quite a liberal, stating in a recent interview that he regards Guantanamo prison as a clear violation of international law, no question about it.
Thank you, Zaza (again). I’m afraid some of the previous commentators did not actually read the article. To repeat: the EU directive expressly lays out that the content of communications is not to be saved. We are simply talking about framework data that telephone service providers or internet access providers — also in the US — are generating anyway. Moreover, the government does not by virtue of the law “have” the data. The law requires the IT or telecommunications firms to save it.
The problem here is that the court has struck down the data retention law as somehow an unacceptable violation of privacy rights — *as if* the retention of the data constituted surveillance — but it has done nothing to set limits to the remarkably large practice of *real literal electronic surveillance* that occurs in Germany. This includes wiretaps, surveillance of e-mail accounts and even surveillance of internet connections — all the sorts of things that the public may well imagine that this law is about, but in fact it is not. To give yet another example: in Germany, a district attorney may initiate a wiretap *without* a court order. The DA can get the court order three days later. Moreover, according to the 2003 Max Planck Institute study cited in the article, when DAs do apply to the courts for wiretap orders, the applications are refused only 0.4% of the time.
Especially in fighting terror knowing the networks is very important.
It won’t be long before the germans find themselves another “Furher”…get uniforms and a snazzy marching band….and all will be well again.