An obligation to retain traffic data for a certain period was introduced into the TKG (Section 113a) by the legislature in 2007 while implementing Directive 2006/24/EC. However, the provision was declared null and void by the Federal Constitutional Court in its decision from 2 March 2010 due to constitutional deficiencies. Meanwhile, the directive which the provision was based on has also been declared invalid by the ECJ. In October 2015, the Bundestag passed the „Law for the implementation of a retention obligation and a maximum retention period for traffic data,” which has been in force since 18 December 2015, thereby once again providing for the unoccasioned retention of traffic data for a certain period (nota de subsol 145: In academic literature, however, doubts are being voiced regarding the compatibility of the new provisions with EU law, see Boehm/Andrees, CR 2016, 146 et seqqș Rossnagel, NJW 2016, 533 (539)). However, the retention and other associated obligations need not be complied with before 1 July 2017.
Pursuant to Section 113b Subsetion 2 TKG, providers of publicly available telecommunication services are now required to retain, for a period of ten weeks, inter alia, the concerned telephone numbers or other IDs, the time, and the duration of all telephone calls (including the IP addresses involves as well as the assigned user ID in cases of VoIP). Furthermore, regarding mobile telecommunication, the retention obligation also covers the IMSI and IMEI, as well as the telephone numbers, and the time at which every SMS or MMS was sent or received.
Also to be retained for ten weeks according to Section 113b Subsection 3 TKG are a participant’s assigned IP address, a definite connection ID, and an assigned user ID, as well as the time and duration of the respective internet use. Pursuant to Section 113b Subsection 4 TKG, the location data of users of mobile telephone or internet services must be retained for four weeks. Section 113 Subsection 5 TKG explicitly stipulates that the content of communication, data regarding the internet sites accessed, and data from electronic mail services may not be retained. Also, pursuant to Section 113 Subsection 6 TKG, the retention of traffic data may not cover connections to lines of telephone counseling services as per Section 90 Subsection 2 TKG.
Pursuant to Section 113c Subsection 2 TKG, data may not be transmitted for purposes other than the prosecution of particularly serious crimes, the prevention of concrete dangers to life, limb, or liberty of a person or for the continued existence of the Federal Republic of Germany or one of its Lander, or for the purpose of subscriber data disclosure on the basis of Section 113 Subsection 1 Sentence 3 TKG, in which an IP address is used to determine the line assigned to it at a certain point in time. According to Section 113c Subsection 3 TKG, these data must be marked in such a fashion that it is distinctly recognisable that one is dealing with data retained pursuant to Section 113 b TKG.
Notă MMB: a se compara cu termenul de 3 ani introdus prin Legea nr. 235/2015, dar și cu celelalte dispoziții din Legea nr. 506/2004. Totodată, a se citi și decizia CCR nr. 621/2016 care a respins excepțiile ca fiind inadmisibile.
Benjamin Vogel, Patrick Koppen, Thomas Wahl
(Germany Report în Access to Telecomunication Data in Criminal Justice (coord. U. Sieber, N. von zur Muhlen), Duncker & Humblot, decembrie 2016, la p. 548)