"Freedom on reserve?" - SpaceNet AG discusses the controversial issue of data retention with experts

Under the title "Freedom on retention? - The controversial issue of data retention in Germany", experts from business and politics discussed the controversial government plans to introduce data retention on Wednesday morning. The panellists included Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice and board member of the Friedrich Neumann Foundation for Freedom, Dr Michael Ruoff, state chairman of the FDP Bavaria, and Sebastian von Bomhard, founder and CEO of SpaceNet AG.

Commitment to data protection with a signalling effect

SpaceNet AG had already brought an action against the statutory regulation on data retention before the Administrative Court of Cologne in 2016 - and took it all the way to the European Court of Justice (ECJ). In 2022, the ECJ finally declared precautionary data retention to be unlawful - a decision that was also confirmed by the Federal Administrative Court (BVerwG) in 2023. SpaceNet thus sent a clear signal in favour of data protection, legal certainty and digital freedoms in Germany. However, with the renewed inclusion of this approach in the coalition agreement, the topic is now back in the spotlight.

The headline in DieZeit was indeed 2023: "Data retention finally declared unlawful". "I wonder what has become of the word definitive," marvelled Sebastian von Bomhard. "Definitive used to mean that something was over at some point and didn't come up again every two years." With its original lawsuit, SpaceNet AG had managed to avoid having to bow to the legal retention requirement.

Expert discourse on freedom and digital security

Sabine Leutheusser-Schnarrenberger outlined the development of data retention in Germany in a historical overview. "This is about fundamental questions of protecting our privacy and informational self-determination," emphasised the former Federal Minister of Justice. "We are talking about an issue that fundamentally affects our basic rights." It is not just about the users, but also the providers who are required to store and pass on the data.

In his statement,Dr Michael Ruoff focused on the socio-political dimension: "Data retention without cause is a very far-reaching encroachment on privacy," he explained. "Freedom is not a luxury, freedom is a future competence." Instead, he called for the use of targeted, state-controlled procedures such as the "quick freeze" approach.

In contrast to data retention, telecommunications data - such as IP addresses - are only frozen directly with the provider if there is a concrete suspicion of an offence. "The data can be analysed in a targeted manner. The quick freeze procedure does not produce a huge haystack of data that first has to be painstakingly combed through," explained Dr Ruoff.

Sebastian von Bomhard outlined the current technical and legal risks of the planned data storage. "Not only has the retention period been doubled," emphasised von Bomhard. "Whereas previously the data of the subscriber was to be checked, we are now even talking about storing the port number of all contact partners. If we think further, not only will more data be stored for longer in the future, but the use of AI will open up completely new possibilities."

Exchange at the press club

In the subsequent discussion round, the representatives from the specialised media and the general press took the opportunity to ask critical questions and engage in a lively exchange with the experts.

The pressing question in the room: Why is data retention an issue again? Ms Leutheusser-Schnarrenberger made it clear: "We are sitting here again because politicians are once again presenting a new draft law. But this is more about symbolic politics - just to have something to show for it. It matters little how well the law works in the end." Sebastian von Bomhard agreed: "The upcoming legislative proposal harbours three recurring risks: Data retention is without cause, blanket and indefinite. And that's why we're talking about it again. It is the eternal revenant."

"There is also still a problem if someone is wrongly accused," emphasised Dr Ruoff. "The approach is completely different. It is easier to take action against a court order than against an accusation based on technical information." When asked about the costs involved, von Bomhard concluded: "It's not so much a question of money, but a question of freedom."

Further information on the topic of data retention and the role of SpaceNet AG can be found here.