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Higher Administrative Court decision in the German state of NRW: SpaceNet AG not obligated to retain telecommunications data of customers
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Important signal for entire Internet sector
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Concerns about European law: Blanket data retention encroaches fundamental rights
Blanket data retention is not compatible with European Union law. This is the decision of the Higher Administrative Court of North Rhine-Westphalia in its resolution from 22 June 2017. The Internet provider SpaceNet, supported by eco, had taken legal action back in April 2016. The objective of the lawsuit is to definitively halt blanket data retention through a landmark decision, and also, if necessary, through a submission to the European Union Court of Justice (EUCJ).
Important signal for entire Internet sector
Already in December 2016, the EUCJ announced a new landmark decision on blanket data retention: European member states are not permitted to define any general obligations for blanket data retention. In addition, the EUCJ clarified that usage of retained data is only legitimate for combatting serious crime, not for minor crime, while the access to data and the length of time it may be retained must be limited to the absolute minimum required. Furthermore, investments running into the millions are necessary for the Internet providers to even create the technical and organizational conditions for broad-scale data retention. With the interim relief provided to SpaceNet AG today, an important signal has been sent to the entire Internet sector: “The judgment of the Higher Administrative Court of North Rhine-Westphalia is the first step in the right direction. But now it is time for a landmark decision to definitively stop blanket data retention. Otherwise companies run the risk of being required to implement a law which does not conform with either European law or German constitutional law, and thus simply pour millions in funds down the drain,” says Oliver Süme, eco Director of Policy & Law. “Blanket data retention is an Internet policy mistake, one which we have repeatedly warned against in the past and that would have been avoidable if the German federal government had taken closer note of the industry’s objections.”
eco and SpaceNet push for a further landmark decision
Sebastian von Bomhard, Member of the Board at SpaceNet AG, also sees his company’s position as validated: “It is good to see that we took the right route with our lawsuit and the emergency appeal. Even though the court has initially only made a decision regarding the emergency appeal, the opinion of the court contains a number of elements that would prejudice the outcome in favor of SpaceNet’s position. The Data Retention Act obligates us to retain all customer communication data, and if necessary to disclose this information to the police, the state prosecutor, or the Office for the Protection of the Constitution. This is a breach of trust that we are being forced into, and that we would never voluntarily agree to.”
Blanket data retention encroaches European fundamental rights
With the legislation for the reintroduction of blanket data retention in December 2015, one of the most unpopular Internet policy initiatives of recent years may have been formally concluded, but many legal issues still remain highly controversial. Alongside the violation of civil rights, the law also encroaches on the constitutionally guaranteed freedom of enterprises. Prof. Dr. Matthias Bäcker, university professor for public law and author of the statement of claim, says: “We welcome the judgment: in its current form, the law conflicts with the fundamental rights to Respect for Private and Family Life, and to Informational Self-Determination, and it is an illegal encroachment on entrepreneurial freedom and the occupational freedom of the affected Internet providers,” says Bäcker. “The Higher Administrative Court has shown expressly that blanket data retention is generally contrary to European law. Now, the German Federal Network Agency must clarify for all telecommunications companies that they are not required to retain data until the definitive outcome of the lawsuit.”
Download the eco background paper on the lawsuit against blanket data retention.
Image: © James Steidl | istockphoto.com
