Decision no. 2017-648 priority matter of constitutionality, August 4, 2017 - La Quadrature du Net and Mr. XX
- 2017
- France
Topics
Public securityLegal bases
France: Interior Security Code (Code de la sécurité intérieure) of 2012Courts
Constitutional Council (Conseil constitutionnel), FranceLaws
Proportionality Right to respect for private and family lifeFacts
The constitutional council was asked to decide upon a priority matter of constitutionality by the Conseil d'État (decision no. 405792 of 17 May 2017). This matter was put forth for the associations La Quadrature du Net, French Data Network, Fédération des fournisseurs d'accès à Internet associatifs, and their legal advisors.
Legal grounds
It relates to the compliance of Article L. 851-2 of the Interior Security Code with the rights and freedoms that the Constitution guarantees, in this Article's drafting resulting in Law no. number 2016-987 of 21 July 2016 extending the application of Law no. 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism. The contested provisions allow the administrative authority, for the prevention of terrorism, to gather in real time the connection data relating, on the one hand, to a person previously identified as having a link with a threat, and on the other, persons associated with the person in question under this authorisation when there are serious reasons to think that they may be able to provide information about that which is being sought under such authorisation. This technical information gathering is authorised for a term of four months, and is renewable, pursuant to Article L.821-4 of the Interior Security Code. Firstly, the administrative requisition procedure for connection data established in the contested provisions excludes access to the content of correspondences. Therefore, the claim of infringement on the right to secrecy of correspondence should be set aside. Secondly, on the one hand, the gathering of connection data in real time may only be carried out for the purpose of preventing terrorism. Furthermore, only information or documents managed or retained by telecommunication providers, those providing access to online public communications, or web hosts of such services. On the other hand, this technical requisition of information is carried out under the conditions established in Chapter I of Title II of Volume VIII of the Interior Security Code. Pursuant to Article L.821-4 of this Code, it is authorised by the Prime Minister or direct associates to which competence has been delegated, upon written request and sought by the Minister of Defence, the Minister of the Interior, or the Ministers of the Economy, Budget, or Customs, after prior notice of the Commission Nationale de Contrôle des Techniques de Renseignement [the French national commission overseeing intelligence techniques]. It is authorised for term of four months and is renewable. Pursuant to Paragraph II of Article L. 851-2, the absolute emergency procedure established in Article L. 851-5 of this Code is not applicable. Under the terms of Article L. 871-6 of the same Code the material operations necessary to put in place the techniques mentioned in Article L. 851-2 may only be carried out, in their respective networks, by qualified agents of the services or organisations placed under the authority or supervision of the Minister in charge of electronic communication or the telecommunication network service provider. Finally, these intelligence techniques are carried out under the supervision of the Commission Nationale de Contrôle des Techniques de Renseignement. Pursuant to the provisions of Article L. 841-1 of the same Code, the Conseil d'État may be called to decide by any person wishing to verify that information-gathering techniques are not implemented improperly regarding it or by the Commission Nationale de Contrôle des Techniques de Renseignement. It follows from the foregoing that the legislature established the procedure for gathering connection data, when it applies to a person previously identified as possibly having a link to a threat, with the proper guarantees to ensure harmonisation that is not manifestly unequal between, on the one hand, preventing attacks on the public order and infractions, and on the other, the right of respect for private life. However, by applying the contested provisions, this requisition procedure also applies to persons connected to the person in question under the authorisation, for which there are serious reasons to think that they may be able to provide information about that which is being sought under such authorisation. In so doing, the legislature allows this information-gathering technique to include in its scope an increased number of persons, without their link to such a threat being necessarily close. Additionally, without establishing that the number of authorisations in force at the same time be limited, the legislature did not ensure harmonisation between, on the one hand, preventing attacks on the public order and infractions, and on the other, the right of respect for private life. Consequently, the second sentence of Paragraph I of Article 851-2 of the National Security Code should be declared unconstitutional. The first sentence of the same Paragraph, which does not infringe on the right of respect for private life, or any right or freedom guaranteed by the Constitution, shall be deemed conform with the Constitution.
Findings
The Constitutional Council rules: The second sentence of Paragraph I of Article L. 851-2 of the Interior Security Code, in its drafting resulting in Law no. 2016-987 of 21 July 2016 extending the application of Law no. 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism, is unconstitutional. The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in paragraph 14 of this decision. The first sentence of Paragraph I of Article L. 851-2 of the Interior Security Code, in its drafting resulting in Law no. 2016-987 of 21 July 2016 extending the application of Law no. 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism, is conform with the Constitution.