The Hessian state government wants to enforce through the Federal Council that IP addresses can be stored for up to a month without any reason. The initiative goes far beyond the so-called quick freeze procedure decided by the federal government.

On Friday, April 26, 2024, the state government of Hesse wants to present a legislative initiative to the Bundesrat that stipulates that IP addresses can be stored for a month without reason. The background is a project by the local black-red government, which emerges from the corresponding coalition agreement.

According to this, providers should keep Internet IDs for a month without reason. The judiciary and criminal defense authorities such as the State Office for the Protection of the Constitution should be able to access it to combat and prosecute serious crime.

Storing IP addresses: Hesse is pushing ahead with data retention

The initiative by Prime Minister Boris Rhein and Hesse's Justice Minister Christian Heinz (both CDU) also provides a means of prosecuting less serious crimes. Rhein explained:

The thought of how many perpetrators we cannot catch because we are not allowed to store IP addresses is unbearable for me. Data protection must not be a protection for perpetrators.

Justice Minister Heinz added that the draft law was also compatible with EU law due to the targeted storage period of one month. The Hessian state government also criticized the federal government's so-called quick freeze procedure, which, according to Rhein and Heinz, does not offer sufficient protection.

What is the quick freeze process?

The quick freeze procedure stipulates that data may only be stored if there is suspicion of a crime of significant importance. A court order is necessary for this.

In order to access and evaluate the frozen data, a further decision is required. However, if there is imminent danger, the public prosecutor can also make a provisional decision.

That is not enough for the Hessian state government and Federal Interior Minister Nancy Faden (SPD). In exchange for concessions in tenancy law, the SPD at the federal level recently moved away from this and agreed to the quick-freeze procedure preferred by Federal Justice Minister Marco Buschmann (FDP).

Data retention: The legal hurdles are high

The legal hurdles for data retention without reason in Germany are high. It had already been decided in the meantime, but was rejected by the Federal Constitutional Court in 2010. The politicians then made improvements. However, due to legal ambiguities, it was suspended again in 2017.

In 2022, the European Court of Justice (ECJ) ruled that data retention without reason is only compatible with the fundamental right to privacy under extreme limits. The Federal Administrative Court followed this ruling a little later.

Accordingly, IP addresses may only be stored without specific suspicion in strict compliance with proportionality. However, this requirement is very specific and leaves room for maneuver. The duration of data retention must be limited to what is “absolutely necessary”.

Hesse's Justice Minister Christian Heinz is now of the opinion that his initiative meets this requirement. Because no personal movement profiles are created, the most important requirement is met. But the courts will probably ultimately have to decide whether the initiative from Hesse is compatible with the Basic Law.

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