JUSTICE - No. 66

39 Spring 2021 unconstitutional by the Constitutional Court in the ruling for the TKG were contained in very similar form in the new NetzDG. It was therefore feared that the new NetzDG, in the version envisaged by parliament, would also be unconstitutional, similar to the judgment regarding the TKG. The decision of the Federal Constitutional Court regarding Sec. 113 TKG essentially says that the state's access to personal data of mobile phone and internet users for law enforcement and counter-terrorism purposes goes too far. On the basis of Sec. 113 TKG, the police, Federal Criminal Police Office and the intelligence services have the power to obtain information in order to solve crimes or prevent terrorist attacks. To this end, they are allowed, for example, to request the“fixed“ inventory data such as name, address and date of birth of a connection owner from telephone companies and providers. Providers also access the IP address used to precisely determine the owner of an internet connection. The Court considered the requirements under which the authorities could query this data to be too broad. It was held that the right of the authorities to obtain information only existed when and if it served to protect or prove legal interests of utmost importance. In the current version, however, the law allows this information if the authority requests it in text form in an individual case for the purpose of prosecuting criminal offenses or administrative offenses, for averting dangers to public safety or order or for the fulfilment of statutory duties. This, to repeat, is considered too broad. The Federal Constitutional Court thus demands that the requirements for inventory data retrieval be increased to prevent this sensitive data from being obtained too easily by the authorities. The current design of the inventory data retrieval, it is held, violates the fundamental right to informational self-determination and telecommunications secrecy and is thus, according to the Court, unconstitutional. Since the Federal Constitutional Court had not declared inventory data disclosure unconstitutional per se, but had merely criticized the way it was implemented in Sec. 113 TKG, Parliament therefore passed a revised bill that was intended to incorporate the restrictions now demanded by the Federal Constitutional Court into the new NetzDG. This revised law was intended to make the TKG and the new NetzDG simultaneously constitutional. 30 The corresponding revised law was passed by parliament on January 28, 2021 (BT-Drucksache 19/25294), but two weeks later the Bundesrat still refused to approve it. 31 The reason given was that the errors making the law unconstitutional, according to the Bundesrat, had not been corrected to a sufficient extent. In particular, opponents of the proposed law feared that it would interfere too much with data protection if the authorities were granted such far-reaching access to user data. 32 However, since the intended purpose of the new bill generally meets with cross-party approval, the Minister of Justice, Christine Lambrecht, hoped that the Mediation Committee that is now to be set up will be able to reach a conciliatory solution. It is not yet clear when this committee will meet. 3. Criticism of the New NetzDG (NetzDG 2021) The NetzDG has been criticized both in its previous version and in its intended new form, and not only by the Bundesrat. The opposition — experts, users and the operators of social networks — fear that the fundamental system of the NetzDG suffers from a number of weaknesses that could be further exacerbated, among other things, by the reporting obligation envisaged in the new NetzDG (2021). For both versions of the NetzDG, the legislator relies on the operators of the social networks for the classification of the reported posts. They are to assign employees and entire departments to check the posts reported by users for their legality and to prepare the corresponding semi-annual reports. This represents a considerable financial burden for the companies behind the social networks. Moreover, the preliminary stage of legal prosecution in Germany is transferred to a private (American) company as a primary task of the state, whereby it is not remotely ensured that the respective responsible employees are sufficiently competent for such tasks. 33 30. Annelie Kaufmann and Hasso Suliak, “BMI legt Reparaturgesetz vor,”L EGAL T RIBUNE O NLINE , Nov. 26, 2020, available at https://www.lto.de/recht/hintergruende/h/ gesetz-hasskriminalitaet-verfassungswidrig-reparatur- bestandsdatenauskunft-ausfertigung-bundespraesident 31. BR-Drucksache (Federal Council Printed Matter), 84/21 (German Federal Council Document, Records and reports on the activities of the German Federal Council). 32. Summary of the hearing in Parliament (Bundestag), Jan. 25, 2021, available at https://dbtg.tv/cvid/7497613 33. Supra note 15, p. 344.