THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 23 May 2017 by the Conseil d'État (decision no. 405792 of 17 May 2017), 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, by the firm Spinosi and Sureau, attorneys at the Conseil d'État and the Cour de Cassation. It was registered by the General Secretariat of the Constitutional Council under number 2017-648 QPC. It relates to the compliance of Article L. 851-2 of the National 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.
In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
- the National Security Code;
- Law no. 2016-987 of 21 July 2016 extending the application of Law no. 55-385 of 3 April 1955 on states of emergency and regarding reinforcement measures in the fight against terrorism;
- the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
In light of the following items:
the observations presented on behalf of the applicant associations by the firm Spinosi and Sureau, registered on 14 August and 29 June 2017;
the observations of the Prime Minister, registered on 14 June 2017;
the observations in response presented for the association La Ligue des Droits de l'Homme [the League of Human Rights] by the firm Spinosi and Sureau, registered on 14 June 2017;
the documents produced and appended to the case file;
Having heard Mr. 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 25 July 2017;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:
Article L. 851-2 of the National Security Code, in its drafting resulting in the Law of 21 July 2016 mentioned above, provides that:
“I. - Under the conditions established in Chapter I and Title II of this Volume and uniquely for the requirements of preventing terrorism, the information or documents mentioned in Article L. 851-1, relating to a person who has previously been identified as having a link to a threat, may be individually authorised to be gathered, in real time, from the network of the operators and persons mentioned in the same Article L. 851-1. When serious reasons exist to think that one or several persons associated with the person in question under this authorisation may provide information about that which is being sought under such authorisation, this authorisation may also be individually extended to these persons.
“II. - Article L. 821-5 is not applicable for authorisations issued in pursuance of this Article”.
The applicant associations and the intervening association claim that Article L.851-2, in its drafting, infringes on the right of respect for private life and to the secrecy of correspondence, insofar as, on the one hand, the scope covering the persons for whom the data connection may be gathered in real time is too large, and on the other, that the time frame of this authorisation is too long.
Consequently, the priority matter of constitutionality concerns Paragraphs I of Article L. 851-2 of the National Security Code.
- On the merits:
Pursuant to Article 34 of the Constitution, it is for the legislature to determine the rules concerning the fundamental guarantees granted to citizens to exercise public freedoms. It shall be for the legislature to ensure that a balance is struck, on the one hand, between the prevention of attacks on public order and infractions, necessary in order to safeguard the rights and principles of constitutional value, and on the other, respect for rights and freedoms guaranteed under the Constitution. Included within these freedoms is the secrecy of correspondence and the right of respect for private life, protected by Article 2 of the Declaration of the Rights of Man and the Citizen of 1789.
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 National 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 National 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. The composition and organisation of this independent administrative authority are defined in Articles L. 831-1 to L. 832-5 of the National Security Code under the conditions that ensure its independence. It mission is defined in Articles L. 833-1 to L. 833-11 of the same Code under the conditions that ensure the effectiveness of its oversight. 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
- On the Effects of the Ruling of Unconstitutionality:
According to the second Subparagraph of Article 62 of the Constitution:
“A provision declared unconstitutional on the basis of Article 61-1 is repealed 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 may 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 Constitutional Council's Decision. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.
The immediate repeal of the second sentence of Paragraph I of Article 851-2 of the National Security Code would bring about clearly excessive consequences. Therefore, it is best to delay the date of appeal to 1 November 2017.
THE CONSTITUTIONAL COUNCIL RULES:
Article 1. - The second sentence of Paragraph I of Article L. 851-2 of the National 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.
Article 2. - The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in paragraph 14 of this decision.
Article 3. - The first sentence of Paragraph I of Article L. 851-2 of the National 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.
Article 4. - This decision shall be published in the Journal official of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.
Deliberated by the Constitutional Council in its session of 3 August 2017, in attendance: Mr. Laurent FABIUS, Chairman, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.
Made public on 4 August 2017.