Court case 1 BvR 1873/13, 1 BvR 2618/13 (Bestandsdatenauskunft II) – Court Ruling (Germany, 2020)

Two individuals, plus approx. 6000 formally joining, brought constitutional complaints (Verfassungsbeschwerde) to the court, claiming that the challenged provisions of national law were violating their basic rights of informational self-determination and their right to privacy of telecommunications as guaranteed by the German constitution. Whether the challenged provisions regulating transfer and access of specific types of customer data (Bestandsdaten) to and by federal authorities are constitutional or too far reaching and hence violating basic rights. The court held that § 113 of the telecommunications act (Telekommunikationsgesetz – TKG) regulating the transfer of customer data from telecommunication and internet service providers as well as several other provisions governing authorities’ access rights are incompatible with Art 2 (1) in conjunction with Art 1 (1) and Art 10 (1) of the German constitution (Basic Law – Grundgesetz – GG) for lack of consideration of the principle of proportionality. In particular, the bases for requiring transfer and access are not sufficiently specific and must be proportionate in relation to the type of data requested, including purpose limitation. The data in question is primarily so-called subscriber data (Bestandsdaten), referring to data linked to the conclusion or performance of a contract, as opposed to traffic and content data.