14 January 2021
In December, Germany's Federal Constitutional Court published a November ruling which found that legislation allowing police forces and intelligence agencies to engage in the "mining" of a joint database is unconstitutional. The Court ruled that the legislation in force did not meet a number of requirements that would make such actions permissible, namely: the existence of "a sufficiently identifiable danger" in the case of "averting dangers to public security"; for undertaking intelligence analysis, "investigating a specific action or group that warrants surveillance by intelligence services in the individual case"; and for law enforcement purposes, "a suspicion based on specific facts must exist in respect of which specific circumstances have taken shape that support the suspicion."
Press release published by the German Federal Constitutional Court on 10 November 2020, original available here.
Extended data use (“data mining”) pursuant to the Counter-Terrorism Database Act is in part unconstitutional
Press Release No. 104/2020 of 11 December 2020
Order of 10 November 2020
1 BvR 3214/15 (Germany, pdf)
In an order published today, the First Senate of the Federal Constitutional Court held that § 6a(2) first sentence of the Act on Establishing a Standardised Central Counter-Terrorism Database for Police Authorities and Intelligence Services of the Federation and the Länder (Gesetz zur Errichtung einer standardisierten zentralen Antiterrordatei von Polizeibehörden und Nachrichtendiensten von Bund und Ländern, Antiterrordateigesetz, Counter-Terrorism Database Act – ATDG) is incompatible with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG) and therefore void. For the remainder, § 6a ATDG is compatible with the Constitution.
The primary purpose of the Counter-Terrorism Database Act, which entered into force in 2006, was the creation of a joint database for different security authorities, essentially facilitating inter-agency information requests. Following the Federal Constitutional Court’s Judgment of 24 April 2013 - 1 BvR 1215/07 - (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 133, 277 ff. – Counter-Terrorism Database Act I), whereby the First Senate declared several provisions of the Act to be incompatible with the Basic Law, the federal legislator amended the provisions that had been declared incompatible and inserted § 6a ATDG on “extended project-related data use” into the Act. Pursuant to § 6a ATDG, security authorities may engage in what the amendment calls extended use (“data mining”) of the data stored in the counter-terrorism database, which goes beyond facilitating requests for information and also covers operational measures. Thus, § 6a ATDG permits direct use of the counter-terrorism database, including generating new intelligence from the relationships between the stored data. Such use had previously only been permissible in urgent cases.
Facts of the case:
The counter-terrorism database is a joint database for police authorities and intelligence services of the Federation and the Länder that serves to combat international terrorism. For standard cases, § 5(1) no. 1(a) ATDG only permits authorities entitled to submit requests to directly access the basic data stored in the counter-terrorism database to identify those persons who were the object of the request; such data includes name, sex and date of birth (§ 3(1) no. 1(a) ATDG). This access does not cover the extended data stored in the database (§ 3(1) no. 1(b) ATDG), which includes bank account details, marital status and ethnicity, unless an exception for urgent cases applies, and then only subject to strict conditions.
In § 6a(5) ATDG, the legislator defines the term ‘extended use’. It includes establishing connections between persons, groups of persons, institutions, objects and matters, excluding insignificant information and intelligence, associating incoming information with known facts and statistically analysing stored data (first sentence). In this context, the federal authorities involved may also request data by entering phonetic or incomplete data, searching across several data fields, linking persons, institutions, organisations or matters, or by limiting search criteria to a certain time period; they may also make use of territorial or other connections between persons and of links between persons, groups of persons, institutions, objects and matters and prioritise certain search criteria (second sentence). Thus, § 6a ATDG authorises the direct use of the counter-terrorism database to generate new intelligence from the relationships between the stored data (so-called data mining).
With his constitutional complaint, the complainant challenges only § 6a ATDG, claiming that his fundamental right to informational self-determination (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law) has been violated.
Key considerations of the Senate:
The constitutional complaint is admissible and, in part, well-founded. § 6a(2) first sentence ATDG violates the right to informational self-determination following from Art. 2(1) in conjunction with Art. 1(1) GG. For the remainder, the constitutional complaint is unfounded.
The interference resulting from § 6a(2) first sentence ATDG is not justified. The provision is disproportionate.
Spotted an error? If you've spotted a problem with this page, just click once to let us know.
Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement. Registered UK charity number: 1154784. Registered UK company number: 08480724. Registered company name: The Libertarian Research & Education Trust. Registered office: c/o MDR, 88 Fleet Street, London EC4Y 1DH, UK. © Statewatch ISSN 1756-851X. Personal usage as private individuals "fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.