2011 Census – a case of data retention?
In the current public debate, the term “data retention” is often used in the context of the Telecommunications Act that took effect on 1 January 2008. The Act obliged the providers of publicly available telecommunication and internet services to retain comprehensive traffic data for possible later use by the law enforcement agencies, without any concrete suspicion being required.
Although the Federal Constitutional Court (Ref.: 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08) declared the relevant provisions unconstitutional, the reason was not that it considered data retention as such as unconstitutional. The only reason was that the relevant provisions concerning data security, the purposes and transparency of data use and legal protection did not meet the constitutional requirements.
However, the matter decided there has nothing to do with the 2011 Census, where data are collected for purely statistical purposes. The principle of strict confidentiality applies to such data. This covers both “internal” and “external” confidentiality.
“Internal” confidentiality means that the survey variables must be separated from the auxiliary variables as early as possible and that the data must subsequently be processed in an anonymised form where possible.
“External” confidentiality means that, within the sphere of official statistics, the individual statistical data must especially be protected against external access and that they may be passed on to third parties only in an anonymised form and only if there is a legal basis. In practical work, the statistical offices of the Federation and the Länder have been successful in defending this principle of confidentiality also against law enforcement agencies.
In its population census judgment, the Federal Constitutional Court had not rejected the intention of storing the collected data for statistical purposes in the statistical offices of the Federation and the Länder. The court reasoned that a narrow and concrete limitation of use to specific circumstances could not be demanded for data collected for statistical purposes, considering the purpose of statistics in general. Instead, it argued that it was part of the very nature of statistics that, after the data have been processed statistically, they should be used for highly different purposes that cannot be determined in advance (BverfGE 65, 1ff.).
Due to the “statistical confidentiality”, which is enshrined in law, it is also ensured that the collected data are neither used for other purposes nor passed on within the period during which they are stored in the statistical offices.
