For the FDP, the massive storage of data by telecommunications providers is an unjustifiable encroachment on fundamental rights. Tough negotiations are on the horizon.
Federal Justice Minister Marco Buschmann (FDP) has presented a proposal for a procedure for securing telecommunications data that is limited to specific suspected cases. The draft for the introduction of “Quick Freeze” was sent to the other departments of the federal government for approval on Tuesday. The method proposed by Buschmann is intended to be an alternative to the controversial data retention.
Federal Interior Minister Nancy Faeser (SPD) made it clear, however, that she considers this to be insufficient. “The Quick Freeze procedure, which is newly regulated in the draft, can be used as an accompanying instrument in specific applications and provide important investigative findings,” she said on request. However, it is “not an adequate replacement for storing IP addresses”. In contrast to Buschmann, Faeser and several state interior ministers had recently spoken out in favor of constitutional data retention.
From the point of view of the Minister of Justice, urgency is required. Buschmann said: “Because of legal uncertainties, the investigators could not use the previous data retention for many years. They now finally need an instrument that they can also rely on in their work.” The Quick Freeze draft states: “This strikes a good balance between the interest in effective law enforcement and the interest of citizens in the protection of their personal data and the confidentiality of their communications.”
“Freeze” and “Thaw”
With the quick freeze procedure, telecommunications providers are obliged to store data on individual users for a certain period of time if there is an initial suspicion – to “freeze” so to speak. However, this should only be possible in the case of serious crimes such as manslaughter, extortion or child abuse. In addition, a judge must approve the measure. For example, the storage of data from a specific radio cell around the crime scene or the location data of the mobile phones of a victim’s close relatives is conceivable.
However, the investigators should only have access to the data or part of it in a second step – that is the so-called “unfreezing”. Again, a judge must agree. The hurdle here is higher than with “freezing”. The suspicion must be more concrete here, for example directed against a specific person.
How should the requirements of the ECJ be implemented?
In September, the European Court of Justice set strict limits on the storage of telecommunications data to investigate criminal offenses in Germany. The judges ruled that the currently suspended data retention regulation in Germany was incompatible with EU law. At the same time, however, they explained that, in order to combat serious crime, it is possible to retain IP addresses under certain conditions.
The Federal Ministry of the Interior and some state governments are still of the opinion that “quick freeze” is not enough, especially when it comes to investigating sexual abuse of children. Because when selling, bartering or purchasing depictions of such crimes, the IP address is often the only trace. “We should implement what the ECJ has expressly declared to be compatible with our fundamental rights and what is urgently needed to combat serious crime,” said Faeser.
After all, “Quick Freeze” would have one advantage for the investigators: If a judge ordered the “freezing” of data on a specific suspected case, connection and location data would be available in addition to the IP address.
The deputy leader of the FDP parliamentary group, Konstantin Kuhle, said on Tuesday: “An unprovoked storage of the connection data of millions of citizens is not compatible with fundamental rights.” Due to the repeated failure of data retention without cause, the investigators currently lacked important powers. That is why “a speedy legislative process for the quick freeze approach” is important for closing this security gap.
Buschmann sees his general departure from data retention covered by the coalition agreement between the SPD, FDP and Greens. The agreement reached by the Ampel parties prior to the judgment states: “In view of the current legal uncertainty, the forthcoming judgment of the European Court of Justice and the resulting security policy challenges, we will design the regulations on data retention in such a way that data can be stored legally as required and by judicial decision can be saved.”
Judges’ association is pushing for a quick solution
The German Association of Judges (DRB) warned that the “quick freeze” solution falls short because it only freezes traffic data that the providers still have. The companies usually only kept data for their own purposes for a few days, said DRB Federal Managing Director Sven Rebehn. “It is to be hoped that the Federal Minister of Justice and the Federal Minister of the Interior can quickly agree on a compromise and that there will be no protracted political deadlock.”
Hessian Minister of Justice Roman Poseck (CDU) warned that no constitutionally permissible possibility of criminal prosecution should be given up with a view to terrorist acts. “The times are too serious for us to be able to afford the old ideological trench warfare at this point.”