Decision no. 2016-590 QPC of 21 October 2016

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 25 July 2016 by the Conseil d'État (decisions nos. 394922, 394925, 397844, and 397851 of 22 July 2016), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for the associations La Quadrature du Net, French Data Network, Fédération des fournisseurs d'accès à Internet associatifs, and igwan.net, by the SCP Spinosi et Sureau, attorney at the Conseil d'État and the Cour de cassation. It was recorded by the General Secretariat of the Constitutional Council under number 2016-590 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees under Article L. 811-5 of the Internal Security Code, in its wording following Law number 2015-912 of 24 July 2015 on intelligence.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;
• the Code of Criminal Procedure;
• the Internal Security Code;
• Law no. 2015-912 of 24 July 2015 on intelligence;
• The Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

In light of the following items:

• the observations presented on behalf of the applicant associations by the SCP Spinosi et Sureau, registered on 22 August and 6 September 2016;
• the observations of the Prime Minister, registered on 22 August 2016;
• the documents produced and appended to the case file;

Having heard Patrice Spinosi, Esq., attorney at the Conseil d'État and the Cour de cassation, for the applicant associations, and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 11 October 2016;

And having heard the Rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

1. Article L. 811-5 of the Internal Security Code, as in force following the Law of 24 July 2015 mentioned above, provides that: “Measures taken by public authorities to monitor and control wireless communications for the specific defence of national interests are not subject to the provisions of this book or to those of sub-section 2 of section 3 of Chapter I of Title III of Book I of the Code of Criminal Procedure”.

2. According to the applicant associations, by authorising measures to monitor and control wireless communications without defining the conditions for collecting, using, retaining, and destroying the information thus gathered and without providing for any mechanism to control such measures, the legislature disproportionately infringed the right to privacy and the right to an effective judicial relief. Moreover, it disregarded the extent of its competence under conditions affecting these same rights.

• On the merits:

3. According to article 2 of the Declaration of the Rights of Man and the Citizen of 1789, “The aim of any political association is the preservation of the natural and imprescriptible rights of man. These rights are freedom, property, security, and resistance to oppression”. The freedom proclaimed by this article implies the right to privacy and the confidentiality of correspondence. In order to be constitutional, limits placed on this right must be justified by a reason of general interest and implemented adequately and proportionately to that objective.

4. The contested provisions allow the public authorities to take measures to monitor and control wireless communications for the defence of national interests. According to Article L. 871-2 of the Internal Security Code, for the execution of these measures, the minister of defence or the minister of the interior may require natural persons or legal entities operating electronic communication networks or suppliers of electronic communication services to provide information or documents necessary for them to perform and use interceptions authorised by law.

5. Measures to monitor and control authorised by the contested provisions are not subject to the provisions on intelligence appearing in Book VIII of the Internal Security Code, which defines the techniques for collecting information subject to prior authorisation of the Prime Minister, delivered after an opinion from the National Commission for the Control of Intelligence Techniques, and determines the remedies for implementation of such techniques. These measures are no longer subject to the provisions of sub-section 2 of section 3 of Chapter I of Title III of Book I of the Code of Criminal Procedure, which govern interceptions of electronic correspondence ordered by an investigating judge.

6. In the first place, insofar as they allow the public authorities to take measures to monitor and control any wireless communication, without ruling out the possibility of interception of communications or the collection of data permitting the identification of an individual, the contested provisions infringe the privacy and confidentiality of correspondence.

7. In the second place, by providing that measures to monitor and control can be taken only for the specific defence of national interests, the contested provisions implement the constitutional requirements inherent in safeguarding the fundamental interests of the Nation. However, they do not prohibit such measures from being used for broader purposes than the mere implementation of these requirements.

8. In the last place, the contested provisions do not define the nature of the measures for supervision and control that the public authorities are authorised to take. They do not submit the use of these measures to any substantive or procedural condition and do not provide any guarantee for their implementation.

9. In view of the foregoing, in the absence of appropriate guarantees, the contested provisions clearly and disproportionately infringe the right to privacy and confidentiality of correspondence resulting from article 2 of the Declaration of 1789. As a result, without reviewing other grievances, Article L. 811-5 of the Internal Security Code must be declared unconstitutional.

• On the Effects of the Ruling of Unconstitutionality:

10. According to the second paragraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision shall be liable to be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter, and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution provide the Constitutional Council with the power to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect.

11. The immediate repeal of Article L. 811-5 of the Internal Security Code would have the effect of depriving the public authorities of any possibility of monitoring wireless communications. It would result in clearly excessive consequences. In order to enable the legislature to remedy the unconstitutional situation ascertained, it is appropriate to defer the date of this repeal until 31 December 2017.

12. In order to put an end to the unconstitutional situation established as from the date of publication of this decision, it should be held that, until a new law enters into force or, at the latest, until 30 December 2017, the provisions of Article L. 811-5 of the Internal Security Code cannot be interpreted as possibly serving as the basis for measures of interception of correspondence, collection of connection data, or capture of computer data subject to the authorisation provided for in Title II or Chapter IV of Title V of Book VIII of the Internal Security Code. During the same period, the provisions of Article L. 811-5 of the Internal Security Code cannot be implemented without the National Commission for the Control of Intelligence Techniques being properly informed about the scope and nature of the measures taken pursuant to this article.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1.- Article L. 811-5 of the Internal Security Code, in its wording resulting from Law no. 2015-912 of 24 July 2015 on intelligence, is unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in paragraphs 11 and 12 of this decision.

Article 3.- This decision shall be published in the Journal officiel of the French Republic and notified under the terms set down in Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.