The Constitutional Council approves the core of the Intelligence Act
Referred to the Constitutional Council by the President of the Republic, the President of the Senate and more than 60 deputies, the Intelligence Act has now completed the legislative process. The Constitutional Council has approved the major part pf the law by its decision n°2012-713 DC of July 23, 2015.
The core of the Act has been judged compatible with the Constitution since only three measures have been declared unconstitutional.
In addition to a provision on the financing of the National Commission of Control of Intelligence Techniques (CNCTR), the Constitutional Council censored the article on “operational urgency” which aimed to enable the intelligence services to derogate to the Prime Minister and CNCTR’s authority established by this law. The Constitutional Council stated that this article caused “a clearly disproportionate harm to respect for private and family life and secrecy of correspondence”. The Council also declared unconstitutional a measure relative to the international monitoring.
The Constitutional Council validated the intelligence techniques (that are, however, subject to a “strict proportionality test”), the online “correspondence’s administrative interceptions”, the “sound techniques in some places and some vehicles”, the “image and data capture” and all the provisions relating to geolocation and collection of data from devices.
At the heart of the debate, “black boxes” have been validated by the Constitutional Council. The use of these “black boxes” within Internet service providers and telecom operators’ networks aims at collecting suspicious connection data in order to detect a terrorist threat. As a mass surveillance may ensue from this collection, this provision was very controversial and considered by numerous commentators as an infringement of private life of French citizens because these “black boxes” would analyze the metadata of all communications (origin or recipient of a message, IP address of a visited website, duration of the connection).
To date, the government announced that “only data concerning suspicious people will be stored. All other data will be immediately destroyed.”
There were many opponents of this law among which several associations, but also the French data protection authority (CNIL) and more recently the Office of the United Nations High Commissioner for Human Rights (OHCHR) which said that he was “worried about wide intrusive powers” granted to intelligence services.
Keywords: Juris Initiative - Behring - Anne-Solène Gay - Decision of July 23, 2015 – Decision n°2012-713 DC - Constitutional Council – personal data – CNIL – privacy - France - Intelligence Act - data protection – black boxes - secrecy of correspondence
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