By Florence Guthfreund-Roland and Mathilde Hallé

On June 24th, 2015 a new bill regarding intelligence was adopted in the French Parliament by a vote of 438 to 86 (the “Intelligence Law”).

The new legal framework set forth by the Intelligence Law

The necessity of reforming the legal framework surrounding intelligence-gathering had been highlighted in several reports and white papers as a recurrent issue. The Intelligence Law is aimed at setting a coherent legal framework for intelligence-gathering that was lacking whilst ensuring the protection of citizens’ rights and freedoms.

The Intelligence Law provides that French intelligence services may use surveillance techniques for the protection or pursuit of any of the following objectives: (i) national independence, territorial integrity and national defense; (ii) foreign policy interests and the prevention of any form of foreign interference; (iii) France’s major industrial and scientific economic interests; (iv) prevention of terrorism; (v) the prevention of damages to republican institutions, of collective violence likely to affect national security, of the reformation or continuation of groups previously dissolved; (vi) prevention of crime and organized delinquency; and (vii) prevention of weapons of mass destruction.

Subject to specific exceptions, the setup of any surveillance measure must be subject to the prior authorization of the French Prime Minister. Any data collected through surveillance measure can be retained between thirty days and a four-year period depending on the type of data collected. In case of claims regarding the lawful nature of a considered surveillance measure, the Council of State (Conseil d’Etat) has full jurisdiction.

In addition, the Intelligence Law authorizes new methods of surveillance using IT equipment and networks including the following:

• Collection in real time, on electronic communications networks of information and documents relating to individuals identified as presenting a threat;
• Implementation by electronic communications services providers of an automatic processing aimed at detecting connections likely to reveal a terrorist threat;
• Real-time localization of any individual, vehicle, or object;
• Collection of login information;
• Interceptions of electronic correspondences likely to reveal intelligence information;
• Interception of correspondences for a forty-eight-hour period;
• Reception, transmission and recording of words pronounced privately or in confidence, or pictures taken in a private area; and
• Access to computer data.

Finally, the Intelligence Law creates a new regulatory agency, the National Commission for the Control of Intelligence Techniques (Commission Nationale de Contrôle des Techniques de Renseignement, the “Commission”). Any request to the French Prime Minister aimed at monitoring individuals, must be reviewed beforehand by the Commission, to ensure that the contemplated measures are proportionate, justified, and compliant with applicable law. However, the Commission’s opinions are not binding and the Prime Minister may still authorize the measures, even in a case of disapproval by the Commission.

A controversial bill whose compliance with the French Constitution has been challenged

While the Intelligence Law has been widely adopted by the French Parliament, critics have arisen since the early stages of the enactment process.

Prior to the adoption of the law, the French Data Protection Authority (the “CNIL”) had underlined the risks relating to the monitoring of data collected through surveillance measures and raised concerns about the data retention duration. On that basis, the CNIL recommended further guarantees be provided within the new law, that protect the right to privacy, and ensure data protection.

At the same time, several professional groups, unions, lawyers, human rights activists, and civil liberties supporters, have sent the French Constitutional Council (Conseil Constitutionnel) observations about the potential risks, that such a new law could have on the protection of rights and freedoms. In this context, the chairman of the Paris Bar Association has notably warned that the bill constitutes “a serious threat to public liberties,” which would put French citizens under “general surveillance”. Amnesty International and the Human Rights League have also pointed out the unclear drafting of the Intelligence Law, and have highlighted that such surveillance techniques would be infringing upon citizens’ right to privacy by being disproportionate to the objectives pursued. Lastly, according to the Numerical National Council (Conseil National du Numérique), the Intelligence Law will lead to some kind of “mass surveillance” among French society.

On June 25th, 2015, following these criticisms (largely echoed in the media), the Constitutional Council was by the President of the Republic, the President of Senate, and by more than 60 deputies so as to verify the compliance of the Intelligence Law to the French Constitution. On July 23th, 2015, the Constitutional Council issued its decision and censored two provisions of the Intelligence Law regarding:

• A new “operational emergency” procedure in certain cases, that permits the implementation of surveillance measures without the Prime Minister’s prior authorization.. Such a procedure was considered by the Constitutional Council as disproportionate interference with the right to privacy and to the principle of secrecy of correspondence.

• International surveillance measures, considering that their scope of application is not specific enough and that the Intelligence Law does not provide for sufficient guarantees to safeguard citizens’ rights and freedoms.

In the meantime, the French Data Network Association requested a ruling from the Constitutional Council, on the compliance of the Intelligence Law with the French Constitution (Question Prioritaire de Constitutionnalité). However, this application was rejected by the Constitutional Council on July 24,2015, as they consider the definitions in the Intelligence Law to be clear enough.

Despite the criticisms that remain, the Intelligence Law was put into force on July 27th, 2015 — except for the provisions censored by the Constitutional Council.

 

For further information, please contact Florence Guthfreund-Roland (Florence.Guthfreund-Roland@dlapiper.com) or Mathilde Hallé (Mathilde.Halle@dlapiper.com).