European Court of Justice overturns German law on indiscriminate data retention

Today, the European Court of Justice (ECJ) ruled in a landmark decision that the German law on indiscriminate data retention and thus the suspicion-independent storage of telephone and internet connection data is not compatible with EU law.

In recent months, the ECJ has already shown less understanding for politicians in EU member states who continue to call for data retention without any reason, despite the unambiguous legal situation and case law. With unusually clear words, Advocate General Campos Sánchez-Bordona, an expert of the European Court of Justice, caused a furor in an opinion in November 2021 (press release). From his point of view, indiscriminate data retention without any reason would simply not be permissible in the fight against crime.

Experts and politicians have been arguing for almost fifteen years now. The advocates of data retention cite organized crime, child sexual abuse material, illegal file sharing, and recently also hate speech and other crimes. Their opponents accuse them of wanting to disregard courts, fundamental rights, and values and of ignoring laws and rulings time and again.

Peer Heinlein, CEO of mailbox.org, on today’s ECJ ruling:

"I am relieved that the ECJ has once again overturned indiscriminate data retention and has once again clearly rejected the overreaching wishes of politicians. After more than 15 years of discussions, the time has come to an end. indiscriminate data retention of all citizens without any reason would place everyone under general suspicion, would be a profound violation of our fundamental rights, and would open the floodgates to unlawful misuse of the collected data. If all courts, no matter where they are, always come to the same conclusion, politicians must finally accept this. The indiscriminate data retention is dead and now hopefully finally off the table.

With today’s ruling, the ECJ has clarified within which limits and under which very narrow conditions data collection is permissible – for example, in the case of severe crimes and always in compliance with proportionality. This should in no way be confused with the broad-based and, in particular, without any reason, data retention. On the contrary, it shows how high the hurdles for data collection are to be set constitutionally. And that is a good thing."

mailbox.org has been committed in opposing indiscriminate data retention for some time now

In an open letter and together with more than 20 other organisations and experts, mailbox.org yesterday called on the German coalition government to keep the promises of the coalition agreement and to follow the path of a policy free of mass surveillance in the long term.

A constitutional complaint against the retention of data by mailbox.org has been pending before the German Federal Constitutional Court since 2015 but has not yet been decided. It is to be expected that the Federal Constitutional Court will now also rule in the same way after the ECJ ruling.