Kassel Study: 26 Points on the Protection of Fundamental Rights in the Internet Age

Six pieces of advice to the EU, 20 to the German government and parliament: Scientists at the University of Kassel are calling for Internet surveillance to comply with the rule of law - and they have developed concrete criteria for this purpose that must be observed for any surveillance in a democratic constitutional state. "These criteria provide a basis for evaluating the German government's position on surveillance programs such as the American NSA's Prism or the British GCHQ's Tempora," says Prof. Dr. Alexander Roßnagel, head of the Department of Public Law with a focus on the law of technology and environmental protection at the University of Kassel: "They also apply to cooperation between German intelligence services and the NSA. Finally, they are also relevant to the ECJ's decision on the Data Retention Directive or to a reintroduction of data retention in Germany."

In the recently published book "Balancing Interests in the Context of Data Retention," Prof. Dr. Alexander Roßnagel and Antonie MoserKnierim of the University of Kassel and Sebastian Schweda of the Institute for European Media Law (EMR), Saarbrücken, present the results of the research project of the same name funded by the German Federal Ministry of Education and Research (BMBF).

The starting point of the considerations is the duty of the state to protect its citizens and the seemingly contradictory duty to protect their fundamental rights. Both duties can only be harmonized if the protection of citizens also includes the protection of their fundamental rights and is not at their expense. In this respect, restrictions on security provision are the hallmark of a democratic constitutional state. The starting point for the search for harmonization of security and freedom is the Federal Constitutional Court's finding in its ruling on data retention of March 2, 2010, that the Federal Republic of Germany must not be a surveillance state, and the demands the court derived from this.

Under the premise that a European directive continues to force the Federal Republic of Germany to implement data retention, the authors and the author examine which constitutional criteria such a surveillance measure must fulfill under European and German constitutional law and how it can be designed to achieve the best possible balance of interests between security and freedom. In doing so, they arrive at six recommendations to make the European directive more rule-of-law-compliant and 20 recommendations to better take into account civil liberties when designing it in Germany. "These criteria and recommendations also apply to German activities with regard to surveillance measures by foreign intelligence services," Roßnagel emphasizes.

To develop the design proposals, on the one hand, the implementation regulations in 26 member states of the European Union were subjected to a comparative legal analysis and "best practices" for balancing interests were identified. On the other hand, a constitutional analysis of all legal positions affected by data retention was conducted to determine where an optimized balance of interests is necessary. The study came to the following conclusions, among others: 

The storage period should be as short as possible, since the relevance of the data for clarification decreases with the storage period, but at the same time the weight of the encroachment on fundamental rights increases.

The data should only be stored by the telecommunications companies, not by the authorities. To avoid multiple storage, the Federal Network Agency should select the companies in such a way that as few as possible are required to store data. They should be reimbursed for their costs to ensure a level playing field. A "particularly high security standard" (BVerfG) should be required for the protection of stored data.

The release of individual data may only be permissible for the protection of overridingly important legal interests. This requirement must be verified by a judge. Requests must be routed via the Federal Network Agency, which keeps statistics on the requests. The inquirer must report the results of the data use to this central office.

The data subject must be informed in good time so that he or she can verify the legality of the data disclosure and, under certain circumstances, challenge it in court.

In order to protect special relationships of trust, no data of a person subject to confidentiality (e.g. lawyers, pastors or journalists) may be stored.

Before any new surveillance measure is taken, the overall level of surveillance must be examined as part of an "overall surveillance account" in order to prevent the level of surveillance from reaching an unacceptable level. If necessary, surveillance measures cannot be added up, but only replaced.

The newly published book shows that a variety of elements can serve as starting points for optimizing the balance of interests between freedom and security. Overall, these can greatly reduce the weight of the encroachment of fundamental rights by surveillance measures. "However, even in this case, there remains a serious encroachment on fundamental rights, which must lead to a limitation of surveillance measures overall," Roßnagel said.

Roßnagel/Moser-Knierim/Schweda: Balancing Interests in the Context of Data Retention - Analyses and Recommendations. Series: Der elektronische Rechtsverkehr, Vol. 28, Nomos Verlag, Baden-Baden 2013, 274 pp.

www.nomos-shop.de/21233

Image of Prof. Dr. Alexander Roßnagel at:

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Contact:
Prof. Dr. Alexander Roßnagel

University of Kassel
FB 7 - Economics

Department of Public Law with focus on the law of technology and environmental protection

Project Group on Constitutionally Compatible Technology Design (provet)
Tel.: +49 561/804-6089
E-Mail: a.rossnagel[at]uni-kassel[dot]de