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Germany's justice minister has proposed a new data retention law that she says would strike a balance between privacy concerns and EU law. But the EU says this is a non-starter and Germany must comply with its directive.
On Thursday, the European Commission presented Germany with an ultimatum - pass a new data retention law that complies with the 2006 EU data retention directive, or face millions of euros in fines. Germany overturned its own previous data retention law in 2010, when the Federal Constitutional Court declared it unconstitutional, as did courts later in Romania and the Czech Republic.
The six-year-old directive, which requires EU members countries to pass local laws that comply with the outlined requirements, imposes mandatory storage by Internet service providers (ISPs) and telecommunications firms of all their users' data for six months. It was passed in the wake of the terrorist bombings in Madrid in 2004 and London in 2005 as a tool for law enforcement to use against criminal suspects.
German Chancellor Angela Merkel and Justice Minister Sabine Leutheusser-Schnarrenberger have agreed to respond to this ultimatum and to look with "renewed vigor" for a solution.
Instead of the retention for six months of all users' data, as required by the European Commission, the justice minister favors what's being called a "quick-freeze" solution where data should be stored only when under court order based on probable cause. Then, with further judicial oversight, that data could be “unfrozen” and be given to investigators and law enforcement.
Leutheusser-Schnarrenberger, who is a member of the Free Democratic Party (FDP), has argued this quick-freeze method is a good compromise. Conservative political coalition partners in the German government, however, including Merkel's Christian Democratic Union (CDU) party say that this does not go far enough and are not likely to support this measure.
Worse still, the European Commission has said this would not comply with the requirements laid out in the 2006 directive.
"Let me be very clear. ‘Quick Freeze' can not be seen as implementing the EU Directive. It is a different system that is not as effective as the requirements in the directive," said a Commission spokesperson.
As a result, Interior Minister Hans-Peter Friedrich, a member of the CDU's Bavarian sister party, said he felt vindicated by the ultimatum from Brussels.
"We are committed to [implementing data retention] at the European level," he told German public radio.
"The security authorities in all the European countries know that there is an urgent need to [log IP addresses and contact details] to keep track of criminals,” Friedrich added.
The position has been supported by the German Police Union, and the Federal Crime Agency (BKD).
Legacy of data abuses
Germany has a strong tradition of data protection and privacy based on legislation that dates back to the 1970s - a move against the surveillance and data collection practices of the Stasi, the East German secret police, and the Nazis.
Those on Germany's political left, most notably, the Green Party and the Pirate Party - which won 15 seats in Berlin's state parliament last year and is hoping to repeat the feat in other state elections this spring - have voiced their opposition to any new data retention legislation.
Von Notz oppose Germany's return to a data retention law
"There is no evidence that there is a protection gap without data retention,” said Konstantin von Notz, a Green Party member of parliament.
He cited a recent study conducted by the Max Planck Institute for Foreign and International Criminal Law, in Freiburg, in southwestern Germany, which found that after the passage of the data retention law in Germany between 2006 and 2010, that there was no measurable decline in clearance rates in criminal cases.
Von Notz added that passage of new data retention legislation would provide a dubious benefit in a "brutal paradigm shift" in civil liberties.
"Whereas previously, people were only monitored and their data may be held if there is a concrete suspicion, now all the communication, location and time data of 82 million Germans are going to be stored,” he said.
Author: Richard Fuchs / Cyrus Farivar
Editor: Holly Fox