The stunning case of a couple convicted of rape and forced prostitution of a seven-year-old boy has galvanized the debate in Germany over mandatory data retention and investigator access to this data.
The boy’s mother and her boyfriend – identified only as Berrin T. and Christian L. – were convicted Tuesday on 40 charges of rape, forced prostitution, and child endangerment for abusing the boy, now 10, and offering him to pedophiles via the dark web.
In the backlash to the crimes, law enforcement officials are seeking access to data retained by telecommunications and internet firms to investigate potential criminal activity.
A 2015 law requiring data retentions has been de facto suspended after the European Court of Justice ruled in 2016 that similar laws in Britain and Sweden were disproportionately wide. A superior court in Germany decided in 2017 that the ECJ ruling applied to Germany as well. That decision has been appealed to Germany’s highest court, the constitutional court.
Lawmakers speak out
In the meantime, politicians in the Berlin governing coalition now are calling for a Europe-wide regulation on the issue. Volker Ullrich, the domestic security spokesman in parliament for Chancellor Angela Merkel’s conservative alliance, said the decision of the Federal Network Agency not to enforce the data retention law while the ECJ decision is appealed could be debated.
“More importantly, we need protection for data retention under European law very soon,” Mr. Ullrich told Handelsblatt. He suggested an effort to get a new EU directive on the issue.
The legal spokesman for the Social Democrats, the junior partner in Berlin’s governing coalition, agreed that data retention could be an important tool for law enforcement. His preference is to await the ruling of Germany’s constitutional court on whether the ECJ decision applies to the German law.
All this takes time, however, and law enforcement officials are chafing under the restrictions. Providers are not implementing the data retention law because they know the network authority won’t impose any fines, noted Holger Münch, head of the Federal Criminal Police Office (BKA). “This means that we no longer even get basic information, such as determining just who is hiding behind a certain IP address,” Mr. Münch told Handelsblatt.
Opposition politicians in Berlin, however, oppose the data retention law and claim law enforcement officials are just making excuses for their own failures in following up on red flags. In the child prostitution case, for instance, there is a feeling authorities should have seen signs that the boy was being sexually abused. “Rather, here, unfortunately, and not for the first time, there is suspicion of a massive failure on the part of the authorities,” said Tabea Rössner, digital policy spokeswoman for the Greens environmental party.
Law faces constitutional challenge
The deputy head of the Greens parliamentary group, Konstantin von Notz, said: “We are convinced that the constitutional court will once again reject the fallacy of data retention.” The court in 2010 had thrown out an earlier law mandating data retention.
There is, in fact, a good chance the high court will rule against the law. The parliamentary research service last year cast doubt on whether the German law conforms to European jurisprudence when asked for an expert opinion by the Left, another opposition party. The deputy party leader, Jan Korte, said at the time the opinion vindicated their stand that data retention without probable cause was a “disproportionate infringement of the basic rights of citizens.”
In any case, a spokesman for the constitutional court said it hopes to hand down a decision on the issue before the end of the year.
Dietmar Neuerer and Moritz Koch cover politics for Handelsblatt in Berlin. Darrell Delamaide adapted this article into English for Handelsblatt Global. To contact the authors: firstname.lastname@example.org and email@example.com