Data retention and privacy of telecommunications

2 March 2010

Many of us conduct a lot of communication and correspondence, both privately and for business, using mobiles phones, e-mails and the internet. How much secrecy and privacy should be attached to these modes of communication? Criminals use these technologies as much as us (if not more), so where should the line be drawn between privacy and security? There has been no universal answer to this question, and the debate will continue for the foreseeable future.

The German Federal Constitutional Court decided that the data retention regulations, which stipualated that all records of phone connections, text messages, e-mail and browsing histories be kept by the telecoms company for 6 months, to be inconsistent with the privacy or secrecy of telecommunications guaranteed in the Basic Law. Data retention registered the connections and not the content of the call or the e-mail, i.e. who called or sent whom when but not what. However, a lot can still be reconstituted from these data.

According to the court, this kind of data retention must be exceptions and not the norm. Such data retention is permissible only in cases of serious crimes, threats to the life, limb and liberty of a person, or a threat to the existence of the federal state or its constituent state.

It sounds sensible, but does this strike the right balance?