Key Benefits:
THE PROTECTION OF IDENTITY
Mr. President of the Constitutional Council, ladies and gentlemen the members of the Constitutional Council,
We have the honour to refer, in accordance with the second paragraph of Article 61 of the Constitution, the Law on the Protection of Identity.
The appellants consider that, in fact, the creation of the file as set out in section 5 of the Act does not only result in excessive infringement of the right to privacy, but also promotes the destruction for the future of possibilities for the effective exercise of the fundamental right of resistance to oppression, an indispensable corollary of individual freedom itself.
If they do not question the legislator's objective of fighting the usurpation of identity, they will nevertheless ask you to rule on one of the words of German poet Martin Niemöller:
" When they came to get the Communists,
I didn't say anything,
I wasn't a communist.
When they came to get trade unionists,
I didn't say anything,
I wasn't a trade unionist.
When they came to seek the Jews,
I didn't protest,
I wasn't Jewish.
When they came to get the Catholics,
I didn't protest,
I wasn't Catholic.
Then they came to get me,
And no one left to protest. "
Like what the European Court of Human Rights is doing, the authors of the referral will in fact ask you to examine this provision in the existing constitutional and legal framework, but also taking into account the use that could be made in the future in a less protective constitutional framework of fundamental freedoms.
It is, in fact, about a request that specifically address a file containing fingerprints, among other things, that in its decision S. and Marper v. The United Kingdom of 4 December 2008, the Enlarged Chamber of the Court reaffirmed " its view that an individual's concerns about the uses that may be made in the future of private information retained by the authorities are legitimate and relevant to the question of whether or not there has been interference" (1).
In this regard, the rapporteur of the Senate Committee of Laws on the text was no longer eloquent by declaring in second reading:
" Mr Minister, we cannot, elected and Government, be a democrat concerned with rights protecting public freedoms, leave behind us — of course, in this moment, I have no fear, especially because it is you who are in office — a file that others, in the future, through a story that we will no longer be writers, could transform into a dangerous tool, liberticide. In the future, we would have made possible the perverse metempsycose of a protective idea! And the victims could say, by targeting us: they had identified the risk and they did not protect us. Minister, I do not want these victims to give a name to this file, yours, mine or ours." (2)
It is therefore not without a certain solemnity that the appellants address here at your high court. Because it is a certain conception of democracy that is at stake. Does this democracy have to show such a great confidence that it can afford to adopt potentially liberticide measures for the future... at the risk of undue arrogance? Or does she have to admit that she may not be eternal, and therefore make sure that she does not put in place today the instruments of repression of tomorrow... and thus demonstrate a wise humility?
In all respects, whether on the very principle of its creation (I), on its construction modalities (II), or on those of its use (III), this file will call your censorship.
In addition, Article 7 bis A should also be censored (IV).
I. - On the principle of creation
a national biometric file
In accordance with Article 5 of the law, it is created "a personal data processing that facilitates their collection and conservation". As long as it includes, in addition to the surname, surname or surname, sex, date, place of birth, domicile, size and colour of the applicant's eyes of a national identity card, fingerprints and photo, it is a biometric identity file.
As such, this file represents an interference in the exercise of the right of every person to respect his or her privacy, to which you have recognized full constitutional value under Article 2 of the Declaration of Human and Citizen Rights of 1789 (3). As indicated by the European Court of Human Rights in a recent and re-examined case law, the "digital prints objectively contain unique information on the individual concerned and allow for precise identification in many circumstances. The fingerprints are therefore likely to affect privacy, and their preservation without the consent of the individual concerned cannot pass for a neutral or trivial measure " (4).
Therefore, and as you see from your constant jurisprudence, it was up to the legislator to ensure "a conciliation that (not) is manifestly unbalanced" between respect for privacy and other constitutional requirements related to the safeguarding of public order (5), in this case the struggle against the usurpation of identity.
However, the applicants consider that this balance has not been achieved, since the creation of the file is not necessarily necessary (a), nor proportionate to the objective pursued by the legislator (b).
Of course, the authors of the referral do not know that you do not "have a general power of appreciation and decision of the same nature as that of the Parliament," and that if you agree to "see if the objectives assigned by the legislator could have been achieved by other means ", it is on the sole condition that the terms adopted by the law are " manifestly inappropriate to the intended purpose of the DC-6 of March 2011.
Thus, two pre- and fundamental considerations will require that the examination to which you will proceed be particularly strict, one holding the content of the file, the other holding its magnitude.
As for the biometric content of the file first, CNIL recalls that "biometric data are not personal data "like others". They present the particularity of allowing at any time the identification of the person concerned on the basis of a biological reality that is specific to him, permanent in time and of which he cannot escape. Unlike any other personal data, the biometric data is therefore not assigned by a third party or chosen by the person: it is produced by the body itself and designates or represents it, it and no other, in an immutable manner. It therefore belongs to the person who has generated it and any misuse or misuse of this data then causes a major risk to the identity of it ". It further emphasizes that the "need to pay particular attention to biometric data must be strengthened when the biometrics used are said to be " traced", such as fingerprints, for example, "the latter having in fact "the particularity of being captured and used without the knowledge of the persons concerned, such as for the purpose of identity usurping" (6).
As for the size of the file then, unlike the existing files, this new file will have the character neither more nor less than a national file. In the short term, it is the entire French population that will fall under the said file. Invoking the absence of a legal obligation to hold a national identity card cannot mask the existence of a de facto obligation, and this very early in the life of an individual: children themselves increasingly need a national identity card. In fact, no formal approach can be carried out without having to justify its identity, which necessarily involves having a passport or identity card. If these are more factual than legal considerations, they are no less relevant to the exercise of your control. This is the reality of the figures of the police custody in France that guided your decision Daniel W. et al. of 30 July 2010 (7).
Although the passport file is approaching, the new file, due to its magnitude, is not only a change of degree, but also and above all a change of nature: from a category file, one passes to a generalized record. This is why it is not excluded that you consider this file not only from the perspective of privacy, but also from that of individual freedom as such (8). Also, and at the very least, the validation of the TES file by the State Council in its decision No. 317827 of 26 October 2011 should not ipso facto order the validation of the very principle of the creation of the new file that is submitted to you.
(a) As to the need for the file:
The need must be appreciated in relation to the participation of the means that legislators determine in the effective realization of the objectives they set.
However, it is clear from the work of CNIL, as well as foreign experiences, that the legitimate aim of combating identity usurpation does not in any way command the constitution of a centralized file of a whole population.
As the CNIL has perfectly demonstrated, the fight against identity fraud begins with the strengthening of the controls carried out upstream in the identity chain, particularly on extracts of civil status documents provided in support of the application. However, this requirement is well met by section 4 of the Act, which states that: "The officials responsible for the collection or instruction of requests for the issuance of the national identity card or passport may carry out the verification of the civil status data provided by the user to the officers of the custodial civil status of the acts containing such data, in conditions fixed by decree in the Council of State. "
It then actually passes through the use of biometric data. But the simple comparison between the fingerprints recorded in the identity card chip and the prints taken by the applicant of the title is sufficient to protect against any falsification of identity and authenticate the title shown (9).
In his report on the New generation of identity documents and documentary fraud, Jean-René Lecerf admits the effectiveness of this authentication system. The only inconvenience that he notes is that he "does not provide for the uniqueness of identity when issuing the title " (10). But, as the rapporteur of the Senate's bills commission reports on the text, even the existence of a centralized file "does not premunit against the original usurpation of identity" (11). Only the control upstream allows.
In other words, none of the two biometric systems, a simple chip or a chip coupled with a central file, prevents fraud from the initial identity, but on the other hand, the first, incomparably less intrusive than the second insofar as the data subject remains the only holder of the data concerning it, ensures as much efficiency against fraud during the renewal.
Then the foreign examples show that the fight against identity fraud can perfectly happen from a centralized file. When Jean-René Lecerf wrote his report mentioned above, he indicated that only two of the European States that used biometric identity cards were considering establishing a central file, the Netherlands and the United Kingdom (12). Since then, these two countries have renounced their project and decided the destruction of the fingerprints already registered, both for reasons of privacy protection and for the risks of error in the constitution of files (13).
(b) The proportionality of the file:
To convince you of the obvious disproportion between the infringement of the right to privacy that will engender the new device and the continued objective of fighting identity usurpation, nothing is more talking here than the balance of numbers.
If we compare the advanced figure of the high range of identity usurpation, which was also contested, to the number of people involved in the file registration, we find that for 210,000 frauds it is 60 million French who will be registered! (14) If the applicants do not contest in any way, as they have recalled throughout the debates, the gravity of the consequences for the victims and for the State of identity fraud, they cannot, and you will not, admit that the marginality of the phenomenon can justify the institution of the largest biometric file ever created.
In this manifest disproportion, the dangers caused by its lack of infallibility (i), and the risk of fraud (ii) must be added.
(i) The absence of infallibility:
Two examples will illustrate this. The first comes from Israeli. Indeed, it was learned in November 2011 by the Israeli Law, Information and Technology Authority (ILITA), the Israeli personal data protection authority, that the information register of the Israeli population with the data of 9 million living and deceased persons had simply been stolen by an employee of the Ministry of Social Affairs who copied it on his personal computer, a register which was then found to be available online from 2009 to 2011.
Michael Eitan, the Israeli Minister for Improvement of Public Services, subsequently called on the government to abandon its project to create a biometric database of Israelis, and said:
" False promises were made as to the hermetic security of the database. Who can assure us that unhappy employees will not distribute our fingerprints and photographs?
Like the population register, or any other database, it will also be hacked. It's just a matter of time. " (15).
There is indeed no impenetrable computer system, WeakiLeaks is there to remind us.
The second example comes from the many cases of abuses that have been made of the ICT despite the legal guarantees that surround its consultation, and in particular the obligation of traceability of such consultations (16). These drifts were perfectly highlighted in the National Assembly's report on police files of 24 March 2009 (17). The appellants will simply recall in this regard the most salient cases: the case of a Pichon police commander who has published the two celebrities sheets precisely appears to highlight the permeability of the system; the case of a socialist candidate in the last regional elections that revealed a consultation for the least "abnormal" of the file; and more recently the case revealed by Le Canard enchaîné of February 29, 2012 revealing the use of the ICT for commercial purposes.
Therefore, the authors of the referral consider that the provision in the second paragraph of section 5 of the law that is referred to you here requiring "the traceability of the consultations and modifications made by the persons who have access to it" is in no way sufficient guarantee to secure a file of 60 million individuals who will necessarily be the subject of all the lusts.
(ii) The risk of fraud:
This risk was highlighted by Alex Türk. In her book La Vie privée en danger. Citizens under control published at Odile Jacob, he shows us how with a tiny budget, 30 euros, and a little liquid latex, it is possible to seize the fingerprint of anyone and reuse it to deceive a digital biometric recognition device (18).
But the most serious thing is that in this hypothesis, and in view of the confidence that these new biometric recognition technology processes benefit, the person whose imprint has been fraudulently recovered will find himself in the inextricable situation of having to prove that it may have been his imprint that was used, it was not she who was in question.
The lack of infallibility is all the more to be feared in the current state of technology as there is no such file today.
In other words, with a centralized biometric file system, not only identity usurping is not totally excluded, but, moreover, it makes almost impossible for the person whose identity was usurped through his fingerprint to prove this usurpation. At this level of contradiction, not only did the legislator reach the objective that he had set himself, but he turned his back! It is unquestionably how the latter failed to ensure a balanced conciliation between the safeguarding of privacy and that of public order.
However, if you do not jug that it results from the very institution of a biometric national file an excessive infringement of the right to privacy, you will not fail to do so under the terms of its construction and subsequent implementation.
II. - On the construction of the file
As you will not fail to see, most of the parliamentary debates focused on the nature of the mechanism to be put in place, and opposed the supporters of what it agreed to call the "low link" to supporters of the "strong link".
By finally retaining the technique of the "strong link", not only has the legislator made a choice that is neither necessary nor proportionate and which brings an excessive infringement of the right to privacy (a), but it also deprives everyone of his or her effective right of resistance to oppression (b).
(a) With regard to the excessive violation of the right to privacy:
In a "low link" database, a person's biographical and biometric data cannot be crossed, except at the time of issuance of the title. Indeed, a fingerprint corresponds technically in such databases not an identity but a set of identities. It is therefore not possible to determine the identity that corresponds to a given mark.
Conversely, a database with "strong link" allows to match biometric data and biographical data in a univocal way. This system allows to identify, where appropriate, a fraudster. But it generally allows to identify everyone on the basis of prints left by anyone in any place. With such a system, the holder of an identity card will therefore not only be logged, but also and above all traceable.
The major advantage of the construction technique of the "low link" that was proposed by the Senate, and on all its benches, is its irreversibility, since it absolutely premunits against any use of the file (ul) for purposes other than those for which it was established. However, by crossing with other files and/or overlapping with other information, under the control of a judicial judge in these cases, the contribution of this file may be sought in the other uses presented as indispensable by the supporters of the strong bond (recognition of the disoriented persons, identification of corpses, judicial investigation...).
If these considerations are technical in appearance and seem a priori to have to take up the free choice of legislators, they actually have extremely important legal and constitutional implications for the appreciation of the just conciliation between the right to privacy and the safeguarding of public order.
Indeed, it is in the choice of the technique of the "strong link" finally retained by the National Assembly that lies the manifestly unbalanced character of the conciliation carried out by the legislator. Moreover, when your high jurisdiction validated the electronic health card, the " Vitale 2 card", it did so not only with regard to the legal guarantees provided, but also technical guarantees. Thus, you have found that "all of the guarantees associated with the implementation of the provisions of section 36 of the law, in the number of which the characteristics ensuring the security of the system should be stored, are in a way that preserves respect for privacy" (19).
However, both in terms of necessity and proportionality, the guarantees offered against the usurpation of identity by a "low link" file are as important as with the "strong link", while offering guarantees for the right to privacy that the latter does not offer.
The appellants thus make their terms of the rapporteur of the Senate's bills, and if they "understand the commitment of those who wish the "zero failure" in the fight against identity usurpation, they consider it necessary to add to this objective a second: that of the "zero risk" for public freedoms. With the solution that the Senate adopted on first reading, the zero defect in the fight against identity usurpation is approached at 99.9%, and the zero risk for public freedoms is guaranteed by the low-linked base system. " (20). They invite you to do the same, especially since the zero risk in the fight against usurpation is also not guaranteed with the strong link system in case of errors in the data entry or the usurpation of the fingerprints mentioned above (21).
In addition, if, as mentioned above, the future "strong link" file was the subject of a hack, the authors of the hacker would then have a base combining in a univocal way the civil status, face, fingerprints and home of the whole French population (22). Pareil risk is obviously unacceptable, and, incidentally, manifestly contrary to the precautionary principle enshrined in Article 5 of the Charter of the Environment to which you recognized full constitutional value (23). Indeed, it is not certain (although highly probable) that the risk of hacking is realized, but if it is realized, it is certain that it will constitute a grave and irreversible threat to the right to privacy.
All of these elements clearly attest that the solution adopted by the legislature is clearly unbalanced, at the expense of guarantees of the right to privacy.
(b) The deprivation of the right of resistance to oppression:
The authors of the referral wish to draw your particular attention to the risks to the effective exercise of the right of resistance to oppression the institution of such a generalized file of the population with the technique of the "strong link".
They measure the singularity of their approach, especially in view of the justiciability of a notion often apprehended less as a right than a political proclamation (24), and which in any case was not supported by your jurisprudence.
They also recognize that it is not, by itself — by a formula that is familiar to you — or at the moment, that the provision here contested threatens the exercise of this right.
None of these two elements should, however, lead to a thorough examination of the means derived from the questioning of the effective exercise of the right of resistance to oppression.
Firstly, because the uncertainties about its justiciability do not less of resistance to oppression a right, enshrined in Article 2 of the Declaration of Rights of 1789 among the four "natural and imprescriptible human rights" and even a positive right to which your high jurisdiction expressly recognized full constitutional value (25).
Then because the right to resistance to oppression is both the foundation and the consequence of other human rights. As Professor Geneviève Koubi points out: "The paradox of the right of resistance to oppression is thus entirely contained in this confrontation between the exercise of a right and the system of law. From this perspective, resistance to oppression is a human right that is exercised against the system of law ― a system that, instead of allowing the development of laws guaranteeing rights and protecting freedoms, contributes to the dictating of norms that cause them a marked impairment. Expressing a right to respect the right of individuals to the public authorities, the right of resistance to oppression is indeed the consequence of other human rights. It is the foundation in that it engages governments in the path of radical revisions... This is how the right of resistance to oppression is a human right. It is a right "outlaw" certainly, it is a "right outside the law". The resistance to oppression therefore has its place in law precisely to ensure the coherence of the law " (26).
Moreover, this right has been granted consecration in other legal instruments such as our Constitution, either in international instruments or in other constitutions. Thus, the Universal Declaration of Human Rights recalls "that it is essential that human rights be protected by a rule of law so that human beings are not compelled, as a supreme resort, to revolt against tyranny and oppression." The fourth paragraph of Article 20 of the German Basic Law proclaims that: "All Germans have the right to resist anyone who undertakes to overthrow this order, if there is no other remedy possible. " Likewise, the fourth paragraph of Article 120 of the Greek Constitution states that: "The observance of the Constitution is entrusted to the patriotism of the Hellenes, who have the right and the duty to resist by all means to anyone undertaking its abolition by violence. "
Finally, because it is clearly absolute that respect for this right cannot by definition be guaranteed in the context of an oppressive regime, it is necessarily up to a democratic regime to ensure the conditions of exercise for the future. This is actually the answer to the question raised by Florence Benoît-Rohmer and Patrick Wachsmann when they wrote that: "We do not even see in what case the Constitutional Council could declare a law contrary to the Constitution, on the grounds that it would ignore the proclamation of Article 2 of the declaration (of 1789)" (27).
However, the device you have before you is such a hypothesis. Indeed, the constitution of a fullest file of their population is the own of authoritarian regimes. The introduction of a "French identity card" was one of the very first steps taken by the Vichy regime (28). As Robert Badinter recalls, for example, about the plight of Jewish lawyers under the Occupation, the repression of which they were subjected began precisely by the establishment of a file of Jewish lawyers (29). And if Germany rejects any biometric central file today, it is precisely in response to the Nazi regime (30).
How would yesterday's resistancers have been able to oppose the occupant and the Vichy regime if there was a centralized file of the French population that would have been able to identify them on the sole basis of their fingerprints? How will tomorrow's resilient potential resist a possible oppressive government if they can be recognized on that same basis, or on that of the digitized image of their face that will also appear in the file?
As the rapporteur of the Senate's bills, " once created, the central file is likely to constitute, if not surrounded by the required guarantees, a delay bomb for public freedoms." It is therefore this bomb that the applicants ask you to defuse by opposing your censorship on the leader of the lack of legal guarantees for the upcoming effective exercise of the right of resistance to oppression.
III. - On the use of the file
The use of the file was initially limited to the security of identity documents and the fight against identity usurpation. With regard to this only purpose, which is at the heart of Act No. 78-17 of 6 January 1978 "computer and freedoms" (31), the applicants demonstrated that the institution of a file with the technique of the "strong link" was clearly unbalanced.
But the legislator was not content with this only purpose and focused on another purpose that would be the repression of identity usurpation, and thus a judicial use of the file. The appellants are aware that your high jurisdiction has not so far recognized a constitutional character in the principle of purpose. However, you do not know it and do not hesitate to refer to it, underlining the guarantee that the cantonment of the purpose of a treatment of information for which it is instituted (32).
You also found that if "no constitutional norm is in principle opposed to the use for administrative purposes of nominal data collected in the context of judicial police activities ", this use would, however, be misunderstood "the requirements resulting from articles 2, 4, 9 and 16 of the 1789 Declaration if, by its excessive nature, it infringed the rights or legitimate interests of the persons concerned" (33).
The question raised here is inverse, since there is no question of using a judicial file for administrative purposes, but of using a file that is administrative for judicial purposes. However, there is no doubt that there too, an excessive use of an administrative file, even by the judicial authorities, would be likely to infringe on the right to privacy and personal freedom of persons.
Aware of this difficulty, the legislator has endeavoured to resolve it by attempting to circumscribe the judicial use of the future file with respect to the only crimes related to identity fraud.
For example, in the context of a flogging investigation, preliminary investigation or rogatory commission, the comparison of an imprint with those contained in the central file is possible for the following offences:
― identity usurpation (art. 226-4-1 of the Criminal Code)
- fraud by false identity (arts. 313-1 and 313-2 of the same code);
― the achievement of specialized intelligence services (art. 413-13 of the same code);
- the violation of the civil status of persons (art. 433-19 of the same code);
― the intrusion to the exercise of justice (art. 434-23 of the same code);
― the false and the use of false (art. 441-1 of the same code), the false committed in a document issued by a public administration (art. 441-2 of the same code), the fraudulent detention of such a document (art. 441-3 of the same code), the false in public writing (art. 441-4 of the same code), the fraudulent acquisition of a document issued by a public administration (art. 441-6 of the same code)
― driving licence fraud (art. L. 225-8 of the road code)
― fraud in registration plates (art. L. 330-7 of the same code);
― mention of a false address or identity to transport sworn agents (art. L. 2245-5 du code des transports) ;
― the undue request to issue an extract from a third party's criminal record (L. 781 of the Code of Criminal Procedure).
You will not fail to note that the judicial supervision of the consultation of the file attests, as the appellants raised above (34), that it not only challenges the right to privacy that according to your jurisprudence does not necessarily call the intervention of the magistrates, but also individual freedom as such as the judicial authority, under Article 66 of the Constitution, is the only guarantor.
However, the precautions taken by the legislature are insufficient to prevent the arbitrariness and unnecessarily rigour in the application of the law.
According to the terms of your jurisprudence, "it is the duty of the legislator to exercise fully the competence entrusted to it by the Constitution and, in particular, its article 34; that the full exercise of this competence, as well as the objective of constitutional value of intelligibility and accessibility of the law, which stems from Articles 4, 5, 6 and 16 of the Declaration of 1789, imposes it to adopt sufficiently precise provisions and unambiguous formulas
Thus, you have just recalled that the "legislator holds from Article 34 of the Constitution the obligation to establish itself the scope of the criminal law" and that, "in the case of criminal proceedings, this requirement is necessary in particular to avoid unnecessarily seriousness in the search for the perpetrators of offences" (36).
However, despite the provisions adopted to supervise the consultation of the file it creates, the legislator has remained below its jurisdiction, and has ignored the requirement that it adopt specific and unequivocal provisions.
Firstly, because the vast majority of the crimes or offences that are in principle excluded from the list of those that may give rise to a consultation, will be in the end liable to give rise to it, because related to an offence involving, it, identity fraud. Rare are indeed nowadays the burglar gentlemen who, like Arsène Lupin, leave their visiting card on the place of their package. Also, as long as on the scene of a crime or an offence will be found fingerprints, it will be sufficient for the prosecutor or the investigating judge to open in his preliminary investigation or information a fraudulent aspect of identity. It doesn't matter if this offence is subsequently committed, but at least it will have allowed a file consultation to identify a suspect.
The government will not fail to retort that the text expressly provides in Article 5, II, III, and IV, that this consultation will not be able to take place without the suspect being informed of it or to identify an unknown person from the traces that she would have left. However, the argument cannot prosper, at least in the course of an instruction, since the V, which adds an article 99-5 to the Code of Criminal Procedure, does not provide any of these limitations. Accordingly, the judicial police officer may, at any time, request permission from the examining magistrate to consult the file for criminal research purposes, without connection to the identity matrix.
Twoio, because, as the rapporteur of the Senate's bills pointed out, the legislator refrained from clarifying the link between the limited powers of access to the central base defined in section 5 of this text and the proposed new wording for theArticle 55-1 of the Code of Criminal Procedure and the general powers that the investigating magistrates hold articles 60-1, 60-2, 99-3 and 99-4 of the same code to obtain digital documents or access information contained in nominal files (37). In addition, the provisions of sections 77-1-1 and 77-1-2 of the same code relating to the prosecutor's powers must be added in the context of a preliminary investigation, which also allows him to request any document from a computer system or a processing of nominal data.
However, by not expressly excluding the application of these provisions, the legislator has left prosecutors and investigating judges a room for manoeuvre as they may arbitrarily avoid the limitations imposed by the new provisions of articles 55-1, 76-2 and 154-1 of the Code of Criminal Procedure.
Tertio, because as the same rapporteur (38) has pointed out correctly, as it is written, the text does not exclude the identification of the perpetrator of a crime or offence through a facial recognition process from the digitized image of his face. Indeed, the third paragraph of section (5) only excludes the use of this process by the issuing authority of identity or travel documents. But there is no identical express exclusion as part of a flogging investigation, preliminary investigation, or judicial information. It would therefore be up to the only judicial authorities to define their jurisdiction in that regard, while it had been up to the legislature to do so.
Quarto, because the legislator has contented itself with the eighth paragraph of Article 5 of the Law to prohibit a "interconnection within the meaning of theArticle 30 of Act No. 78-17 of 6 January 1978 "with any other file or collection of nominal data of fingerprints and photography. However, the said article 30 applies well to "interconnection" as such, but it also targets "concerns or other forms of interconnection with other treatments" (39). In other words, the legislator simply banned the interconnection of the new file with, for example, other police files, but left the way for a one-time reconciliation within a judicial framework.
Because, therefore, it has not sufficiently premeditated this file against the widespread use of its biometric data for criminal investigations, the legislator is also in danger of your censorship.
IV. - On Article 7 bis A
Article 7 bis A is intended to maintain access to the existing national identity cards and passport management systems that are currently being opened to them by the counter-terrorism services.Article 9 of Act No. 2006-64 of 23 January 2006 on counter-terrorism and on various security and border controls.
However, as noted by the rapporteur of the law commission, the legislator did not legislate on a constant basis but, on the contrary, has completely disproportionately extended the prerogatives of the counter-terrorism services outside of any control of the judicial authority (40).
Indeed, in the current state of law, anti-terrorist services do not have the ability to identify a person from its biometric traces. Either because it is expressly forbidden, as is the case withArticle 21-1 of Decree No. 2005-1726 of 30 December 2005 passports. Either because it is impossible, the fingerprints of the interested are not recorded in the national identity card management file.
However, with the technique of the "strong link" retained by the legislator, counter-terrorism services will find themselves in the possibility, and without any legal constraints, of identifying anyone on the basis of his fingerprints or through facial recognition.
If it appears from a constant jurisprudence ", at any time, that it is lawful to the legislator, ruling in the field of his jurisdiction, to adopt new provisions which he or she is responsible for appreciating the opportunity and amending earlier texts or repealing them by substituting, if any, other provisions ", it is only if, "in the exercise of this constitutional power, it does not deprive them".
However, by opening the possibility for anti-terrorist services to have unlimited access to all the data in the file, including its biometric data, the legislator has clearly deprived of legal guarantees the constitutional requirements relating to the right to privacy and individual freedom.
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For all of these reasons, and those that you would report on your behalf, the applicants invite you to censor all of these provisions.
(1) Application No. 30562/04 and 30566/04, § 70. (2) Meeting of November 3, 2011. (3) Cf. including your decision No. 99-416 DC of 23 July 1999, cons. 45. (4) S. and Mamper v. United Kingdom referred to above, § 84. (5) Decision No. 2003-467 DC of 13 March 2003, cons. 27. (6) Note d'observations de la Commission nationale de l'informatique et des libertés concernant la proposition de loi relative à la protection de l'ident, 25 octobre 2011. (7) Decision No. 2010-14/22 QPC, cons. 15-18. For a general analysis of the apprehension of facts in your jurisprudence, cf. Didier Ribes, " The Realism of the Constitutional Council ", Les Cahiers du Conseil constitutionnel, June 2007, no. 22. It reminds you, for example, that if "the attribution of social benefits related to the education of children cannot depend, in principle, on the sex of parents ", it was nevertheless necessary to "take into account the de facto inequalities that women have so far been the object of" (decision No. 2003-483 DC of 15 August 2003, cons. 24-25). (8) While so far you have always considered the files from the perspective of privacy, not individual freedom. V. in this sense Jean Boyer, "Files of judicial police and constitutional norms: what judicial order?", Petites Posters, May 22, 2003, p. 4. (9) Cf. the note by the NCRE, referred to above. (10) Report No. 439 of 29 June 2005, p. 64. (11) Report No. 432 (2010-2011), p. 30. (12) V. p. 59. (13) Cf. http://bugbrother.blog.lemonde.fr2011/11/03/a-qui-profitele-fichier-des-gens-honnetes/. (14) As indicated in the report of the Senate's Law Commission: "Despite the media fortune it has experienced, and given the serious doubts that the number of 210 000 cases of identity usurpation per year in France, your rapporteur considers that it should not be taken over, without reservation, in the debate on the need to fight fraud against identity, " (report No. 432.2011). (15) Cf. http://bugbrother.blog.lemonde.fr/2011/11/03/a-qui-profitele-fichier-des-gens-honnetes/. (16) V. Decree No. 2001-583 of 5 July 2001 on the application of the provisions of the third paragraph of Article 31 of Law No. 78-17 of 6 January 1978 on computers, files and freedoms and establishing the system for the treatment of offences found. (17) Report No. 1548. (18) Pp. 34-35. Decision No. 99-416 DC of 23 July 1999, cons. 47. (20) Report No. 39 (2011-2012), p. 11. (21) V. supra I.b) (ii). On the risks of mistakes, the applicants refer you to the very interesting contribution of Bernadette Dorizzi, " Error rates in the use of biometric identifiers " in Ayse Ceyhan and Pierre Piazza (under dir.) Biometric identification. Fields, actors, issues and controversies, La Maison des sciences de l'homme, 2011. (22) Report No. 339 (2011-2012), p. 15. (23) Decision No. 2008-564 DC of 19 June 2008, cons. 18. (24) Cf. notably Florence Benoît-Rohmer and Patrick Wachsmann, "The resistance to oppression in the Declaration ", Rights, 1988, no. 8, pp. 91-99. (25) Decision No. 81-132 DC of 16 January 1982, cons. 16. (26) "Think the right of resistance to oppression in contemporary democratic societies" in Pierre-Arnaud Perrouty (ed.), Obey and disobey. Citizen facing the law, ULB, Brussels, 2000. According to the very terms of Article 33 of the Declaration of Rights of 24 June 1793: "The resistance to oppression is the consequence of other human rights". (27) Op. cit., p. 98. (28) CL Pierre Piazza, Histoire de la carte nationale d'identité, Odile Jacob, 2004, et plus particulièrement la partie intitulée " Vichy ou le désir d'identification absolu ", pp. 163 et s. (29) Ordinary anti-Semitism. Vichy and Jewish lawyers (1940-1944), Fayard, 1997, 256 p. (30) Refer to the report of the Senate Law Commission No. 339 (2011-2012), p. 20. (31) Including Article 6, § 2, provides that data processing shall continue "determined, explicit and legitimate purposes and shall not be dealt with later in a manner incompatible with these purposes". (32) Jean Boyer, "Files of judicial police and constitutional norms: what judicial order?", op. cit. Cf. in particular your decisions No. 98-405 of 29 November, cons. 61, and No. 99 of 9 November 1999, cons. 74. (33) Decision No. 2003-467 DC of 13 March 2003, cons. 32. (34) V. supra I. (35) Decision No. 2007-557 DC of 15 November 2007, cons. 19. (36) Decision No. 2011-223 QPC of 17 February 2012, cons. 4. (37) Report No. 339 (2011-2012), p. 13. (38) Ibid., p. 14. (39) On the distinction between interconnection and reconciliation, v. CNIL's practical record of 5 April 2011: http://www.cnil.fr/en-savoir-plus/fiches-pratiques/fiche/article/comment-determiner-la-notion-dinterconnexion/. (40) Report No. 339 (2011-2012), p. 13. (41) Cf. in particular your decision No. 2011-631 DC of 9 June 2011, cons. 67.
