Since July 1, 2017, providers of publicly available telecommunications services are obliged to retain specific user data. The Federal Network Agency (BNetzA) has now decided not to enforce this obligation for the time being.
In its public communication on the storage obligation under Section 113b Telecommunications Act, the Federal Network Agency announced that it would temporarily refrain from issuing orders and other measures to enforce the obligation to retain data. For the time being, providers of telecommunications services would not incur any fines when failing to retain traffic and content data as stipulated.
The agency cites the June 22, 2017 decision of the North-Rhine-Westphalia Higher Administrative Court (Case 13 B 238/17) as a reason for the suspension, according to which the statutory obligation to data retention violated EU law. The court decision was issued in response to an internet provider’s emergency appeal to be temporarily exempted from the obligation to retain customer data.
Due to the scope of this decision that extends beyond the individual case, the Federal Network Agency will not take any measures to enforce data retention until the legally binding conclusion of the main proceeding to review the legality of the obligation to retain data.
It is not yet certain whether lacking implementation of data retention will remain entirely without consequences for providers of telecommunications services up to the legally binding decision in the main proceeding: As an example, competitors might be entitled to issue warnings against providers that do not implement the obligation to retain data