Data retention remains illegal: Our statement on the Federal Constitutional Court’s ruling

Today, the German Federal Constitutional Court published its decision on a constitutional complaint against the law on indiscriminate data retention. The decision is overshadowed by a ruling of the European Court of Justice (ECJ) already issued in September 2022, which has already judged this law to be incompatible with EU law. The German Federal Constitutional Court has now adopted the position of the ECJ in full, with further evidence, and confirmed the unconstitutionality defacto.

The indiscriminate retention of data without any reason would lead to a preventive collection of all communication data – connection data of calls, SMS and IP addresses including location information - of the citizens and thus to an encroachment on their fundamental rights. Experts deplore a kind of "general suspicion" against one's own citizens, which invalidates an essential principle of the German legal system – based on the presumption of innocence.

As a representative of the internet and provider industry, mailbox.org filed a constitutional complaint against the law in February 2018. The constitutional complaint was made together with the association "Digitalcourage", the German journalists' association DJV and other representatives of civil society.

Peer Heinlein, founder and managing director of mailbox.org, says about today's decision of the BVerfG:

"The fact that this constitutional complaint was made was right and important. Once again, the Federal Constitutional Court has strengthened fundamental rights and rejected the encroaching surveillance policy. It has made clear how important free, non-surveillance communication is as the basis of freedom of thought and expression. For years, German politicians have tried again and again to introduce data retention through the back door. It is socially necessary that this issue is put to rest once and for all. Conservative political circles who would wish otherwise must also realise this.

The success of the complaint also shows how important socially and democratically oriented communication providers like mailbox.org are, and the crash of the once so popular communication platform Twitter has shown how important distributed decentralised alternatives are. Unlike large commercial providers like Twitter & Co, these watch over free and secure communication and spare neither expense nor effort to defend it elaborately. They are the antithesis to the bundling of power of communication with large providers and thus an important cornerstone of democratic structures and free and secure communication on the internet."