German court rules that data retention “violates fundamental right to privacy”

Good news from our friends in the German Working Group against Data Retention:

As the first German court, the Administrative Court of Wiesbaden has found the blanket recording of the entire population’s telephone, mobile phone, e-mail and Internet usage (known as data retention) disproportionate.

The decision published today by the Working Group on Data Retention (decision of 27.02.2009, file 6 K 1045/08.WI) reads: “The court is of the opinion that data retention violates the fundamental right to privacy. It is not necessary in a democratic society. The individual does not provoke the interference but can be intimidated by the risks of abuse and the feeling of being under surveillance […] The directive [on data retention] does not respect the principle of proportionality guaranteed in Article 8 ECHR, which is why it is invalid.”

The Working Group on Data Retention which has initiated a class action of over 34,000 citizens against the total logging of the entire population’s communications and movements welcomes the court decision very much. It calls on social democrats and christian democrats to reject the latest government project to allow Internet service providers to record everybody’s Internet surfing habits.

“We call on all citizens to contact their MPs now in order to protest against the proposed retention of web surfing habits,” says Werner Hülsmann, member of the board of the forum of computer scientists for peace and social responsibility and actively working in the Working Group on Data Retention. To stop the project, which the Bundestag will debate on Thursday in the first reading, the Working Group on Data Retention has set up a campaign page on the Internet. In early March, the Federal Council of Germany (Bundesrat) also warned that the proposed “storage of all Internet usage data without a specific cause or with blanket coverage […] violates” the Constitution.

“The recent criticism by Federal Minister of the Interior Wolfgang Schäuble (CDU) of the Constitutional Court’s preliminary decision on data retention proves that his surveillance mania is limitless”, criticizes Patrick Breyer of the Working Group on Data Retention. “It is not ‘a matter for the legislature’ to keep eroding our constitutional guarantees protecting us from errors and abuses by the authorities. We urgently need to establish a Fundamental Rights Agency to have all existing powers and programs of the security authorities systematically and scientifically reviewed as to their effectiveness, cost, adverse effects, alternatives and compatibility with our fundamental rights.”

Granted, this isn’t the end of the matter in Germany. It’s a decision of one court but may be appealed, while the highest court in Germany (the Constitutional Court) has yet to make a final ruling. It is, however, a very encouraging sign – particularly as the Constitutional Court has already indicated a provisional view that data retention may be invalid. It’s also very helpful for our own case with its finding that data retention is disproportionate and unnecessary.