The German constitutional court judgment on data retention: Proportionality overrides unlimited surveillance (Doesn't It?)

Abstract

On 15 March 2006, the Data Retention Directive, demanding the retention of telecommunications data for a period of 6 months up to 2 years, was adopted. Since then, this seemingly straightforward directive has generated quite an impressive number of court judgments. They range from the European Court of Justice to the administrative (e.g. Germany and Bulgaria) and constitutional courts (e.g. Romania) of some Member-States. In particular, the judgment of the German Federal Constitutional Court, delivered on 2 March 2010, has already caught the attention of several commentators, from civil society, lawyers, journalists and politicians. In the judgment, the Court annuls the German implementation laws of the Data Retention Directive. This paper has two main goals. On the one side, it aims at offering a first critical overview of this important judgment, highlighting some of the key features of the ruling and its main similarities and divergences with other similar judgments. On the other side, given the relevance of the issues at stake, it aims at contextualizing the judgment in the wider framework of European data processing and protection debates, assuming a critical posture on the increasing emphasis on proportionality as the golden criterion to assess and limit surveillance practices. © 2011 Springer Science+Business Media B.V.