- eco and SpaceNet push for a landmark decision
- Blanket data retention violates European civil rights
- Costs running into the millions for the Internet industry
The Internet provider SpaceNet is seeking, with the support of eco, to get a court decision that it is not obligated to comply with the new German blanket data retention regulation. To this end, SpaceNet has filed a suit at the German Administrative Court. The objective of the suit is, in particular, to trigger a landmark decision through the posing of fundamental legal questions – a decision that ultimately can only be made by the European Court of Justice (ECJ).
The law for the re-instigation of blanket data retention came into effect in Germany in December last year. With this, one of the most unpopular network policy legislative acts in recent years was concluded, but many legal questions are still strongly contested. Alongside the violation of civil rights, the instrument encroaches on the freedoms guaranteed in basic law for companies. SpaceNet and eco are convinced that blanket data retention breaches both occupational and entrepreneurial freedom.
eco and SpaceNet push for a decision of general principle
“It is time for a new decision of general principle on blanket data retention,” says Prof. Dr. Matthias Bäcker, Professor for Public Law and author of the statement of claim.
This is because, since the court decision, it remains to this day unclear whether the unwarranted retention of data – as is now envisaged in German law – can be compensated through strict material and procedural requirements for the data processing.
“The new blanket data retention regulation will now need to be measured against both German constitutional law and fundamental European Union rights. I am convinced that, in its current wording, the law contravenes the fundamental right to respect for privacy and family life and the right to informational self-determination. It is also an unlawful encroachment into entrepreneurial freedom and occupational freedom for the Internet providers affected,” says Bäcker.
Blanket data retention violates European civil rights
The ECJ ruled back in 2014 that the unwarranted retention of all communication data, without differentiation, limitation or exceptions, to be a clear violation of fundamental European rights. The verdict also placed strong requirements on the protection of parties subject to professional secrecy obligations.
Sebastian von Bomhard, Board Member at SpaceNet AG, sees this protection as not being guaranteed through the German regulation, as was previously also the case. “The law obliges us to retain all connection data from our customers, and to provide information to the police, state prosecutors, or the Office for the Protection of the Constitution. This is a breach of trust, which we are being forced into. And it makes no difference whether it concerns pastoral care, journalists, lawyers or doctors – in every case it damages our business and customer relationships.”
Costs running into the millions for the Internet industry
In addition to this, immense investments will need to be made by the Internet providers, in order to just create the technical requirements for comprehensive data storage. Sebastian v. Bomhard continues to say that “many of these costs are not linear, so they affect smaller providers harder than larger ones – which represents a completely unnecessary interference in the market.” The costs also stand in no relation to the value of blanket data retention. For one thing, it makes hardly any impact on the rate of prosecutions, and for another, the data was previously mainly used for the clearance of theft and tax fraud offences.
“With blanket data protection, the German Federal Government has enacted a law which will result in many losers, without an associated added value for security or crime prevention,” eco Director from Policy and Law, Oliver Süme, criticizes the legislation.
The affected companies will probably be left with an estimated 600 million Euros in costs – which they will need to invest in the establishment of appropriate storage infrastructure. “This is a network policy mistake, which eco has warned against time and again in the past, and which would have been avoidable if the Federal Government had more thoroughly handled the objections of the industry.” As a result, according to Süme, it is a particular interest of the Association of the Internet Industry to support SpaceNet’s lawsuit with all their might.
The eco background paper on the lawsuit can be downloaded here.
