disclosure of content data, the most serious encroachment, is subject to the strictest
requirements. Before briefly addressing the specific requirements, some general
principles shall be pointed out.
Actions interfering the right to confidentiality of communications may only be
taken to the extend that it is necessary, concerning duration as well as scope, for the
specific purpose and if other means would be much more difficult or offer no
prospect of success. Measures infringing the inviolable core area of the private
conduct of life are inadmissible. Information concerning that core area shall not be
used and be deleted without delay. In case of undercover investigation, the participants in the communication under surveillance shall be notified as soon as the
notification can be effected without endangering the purpose of the investigations.
Third persons may only be subject to the undertaken actions if this is unavoidable.
Art. 34a para. 1 PAG (as similar provisions in other federal states) allows the
interception and recording of telecommunications if it is necessary to avert an
imminent danger for body, life and freedom of men, to the extent that there is a
common danger, or a danger for the safety of the Federation or of a state. The
measure has to be ordered by a court, in exigent circumstances by the head of the
police department. In this case, the judge has to confirm the decision immediate, Art.
34c para 1, 34 para. 4 PAG.
For prosecution purposes, content data may only be intercepted if certain facts
give rise to the suspicion of serious crime and if the offence is one of particular
gravity in the individual case, sec. 100a para. 1 StPO. Measures pursuant to sec. 100a
StPO may be ordered by the court only upon application by the public prosecution
office and shall be limited to a maximum duration of 3 months. In exigent circumstances, the public prosecution office may also issue an order, sec. 100b para.
1 StPO.
Traffic data may legitimately be obtained to the extent that this is necessary to
establish the facts or determine the accused’s whereabouts if certain facts give rise to
the suspicion that a person has committed a criminal offence of substantial significance in the individual case as well, or certain facts give rise to the suspicion that a
person has committed a criminal offence by means of telecommunication, sec. 100g
para. 1 StPO.
Inventory data may be requested from any person providing or collaborating in
the provision of telecommunications services if it is necessary to establish the facts,
or to determine the whereabouts of an accused person, sec. 100j para. 1 StPO.
Data Retention
Data retention for the purpose of the investigation, detection and prosecution of
crimes has been subject to different legislation and case law in the recent years. In the
following, a short overview of events is given.
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201
requirements. Before briefly addressing the specific requirements, some general
principles shall be pointed out.
Actions interfering the right to confidentiality of communications may only be
taken to the extend that it is necessary, concerning duration as well as scope, for the
specific purpose and if other means would be much more difficult or offer no
prospect of success. Measures infringing the inviolable core area of the private
conduct of life are inadmissible. Information concerning that core area shall not be
used and be deleted without delay. In case of undercover investigation, the participants in the communication under surveillance shall be notified as soon as the
notification can be effected without endangering the purpose of the investigations.
Third persons may only be subject to the undertaken actions if this is unavoidable.
Art. 34a para. 1 PAG (as similar provisions in other federal states) allows the
interception and recording of telecommunications if it is necessary to avert an
imminent danger for body, life and freedom of men, to the extent that there is a
common danger, or a danger for the safety of the Federation or of a state. The
measure has to be ordered by a court, in exigent circumstances by the head of the
police department. In this case, the judge has to confirm the decision immediate, Art.
34c para 1, 34 para. 4 PAG.
For prosecution purposes, content data may only be intercepted if certain facts
give rise to the suspicion of serious crime and if the offence is one of particular
gravity in the individual case, sec. 100a para. 1 StPO. Measures pursuant to sec. 100a
StPO may be ordered by the court only upon application by the public prosecution
office and shall be limited to a maximum duration of 3 months. In exigent circumstances, the public prosecution office may also issue an order, sec. 100b para.
1 StPO.
Traffic data may legitimately be obtained to the extent that this is necessary to
establish the facts or determine the accused’s whereabouts if certain facts give rise to
the suspicion that a person has committed a criminal offence of substantial significance in the individual case as well, or certain facts give rise to the suspicion that a
person has committed a criminal offence by means of telecommunication, sec. 100g
para. 1 StPO.
Inventory data may be requested from any person providing or collaborating in
the provision of telecommunications services if it is necessary to establish the facts,
or to determine the whereabouts of an accused person, sec. 100j para. 1 StPO.
Data Retention
Data retention for the purpose of the investigation, detection and prosecution of
crimes has been subject to different legislation and case law in the recent years. In the
following, a short overview of events is given.
Data Protection in the Internet: National Report Germany
201