Key Benefits:
(ASSOCIATION FRENCH DATA NETWORK AND OTHER)
The Constitutional Council has been entered On 5 June 2015 by the Council of State (Decision No 388134 of the same day), under the conditions laid down in Article 61-1 of the Constitution, a priority question of constitutionality for the Associations French Data Network, La Quadrature du Net and the Federation of Associative Internet Service Providers, by the SCP Spinosi and Sureau, lawyer to the Council of State and To the Court of Cassation, relating to the conformity with the rights and freedoms guaranteed by the Constitution of Articles L. 246-1 to L. 246-5 The internal security code, registered in the General Secretariat of the Constitutional Council under n ° 2015-478 QPC.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Given the Penal Code ;
Seen And electronic communications ;
Given the Homeland Security Code ;
Seen Law n ° 2004-575 of 21 June 2004 for confidence in the digital economy;
Seen the Law n ° 2013-1168 On December 18, 2013 on military planning for the years 2014 to 2019 and bearing various Provisions on defence and national security;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
In view of the observations made for The applicants' associations by the Spinosi and Sureau SCP, registered on 29 June and 10 July 2015;
In view of the observations submitted by the Prime Minister on 29 June 2015;
Seen the documents produced and attached to the file;
Me Patrice Spinosi for the applicants associations and Xavier Pottier, Appointed by the Prime Minister, having been heard at the public hearing on July 21, 2015;
The rapporteur was heard;
1. Considering that under the terms of article L. 246-1 of the Internal Security Code in its drafting resulting from the Href=" /viewTexte.do?cidTexte=JORFTEXT000028338825 &categorieLink = cid"> December 18, 2013 law : " For the purposes listed in Article L. 241-2, the collection may be authorised from the electronic communications operators and the persons mentioned in article L. 34-1 of the postal code and electronic communications as well as the persons mentioned at 1 and 2 of the I Article 6 of Law No. 2004-575 of 21 June 2004 for confidence in the digital economy, information or documents processed or retained by their electronic communications networks or services, including technical data Relating to the identification of subscription or connection numbers to electronic communications services, to the identification of the subscription or connection numbers of a designated person, to the location of the equipment Terminals used as well as a subscriber's communications on the list of Numbers called and callers, duration and date of communication." ;
2. Considering that, according to Article L. 246-2 of the same Code, in its wording resulting from the law of 18 December 2013: I.-The information or documents referred to in Article L. 246-1 shall be requested by the officers appointed individually and duly authorised by the services of the Ministers responsible for internal security, defence, the economy and Budget, responsible for the tasks provided for in Article L. 241-2.
" II. -The requests of the agents are motivated and subject to the decision of a qualified person placed with the Prime Minister. This person is appointed for a period of three years, renewable by the National Commission for the Control of Security Intercepts, on the proposal of the Prime Minister, who presents a list of at least three names. Substitute assistants are appointed under the same conditions. A qualified person shall draw up an annual activity report to the National Commission for the Control of Security Intercepts. These decisions, together with their reasons, shall be registered and shall be communicated to the National Commission for the Control of Security Intercepts." ;
3. Considering that, according to Article L. 246-3 of the same Code, in its drafting resulting from the law of 18 December 2013: For the purposes listed in Article L. 241-2, the information or documents referred to in Article L. 246-1 may be collected on request of the network and transmitted in real time by operators to the agents mentioned in the I of Article L. 246-2.
" The authority to collect such information or documents shall be granted, upon written and reasoned request by the Ministers for Internal Security, Defence, Economy and Budget or persons whom each of them has specially Designated, by written decision of the Prime Minister or persons specifically For a period of up to 30 days. It may be renewed under the same conditions of form and duration. It shall be communicated within forty-eight hours to the President of the National Commission for the Control of Security Intercepts.
" If the latter considers that the legality of this authorization in the light of the provisions of this Title is not Not certain, it shall bring together the committee, which shall act within seven days of the receipt by its President of the communication referred to in the second paragraph.
" In the event that the commission considers that the collection of a connection data has been authorised in Disregard of the provisions of this Title, address to the First Minister for a recommendation that it be terminated.
"It also makes this recommendation to the Minister who has proposed the collection of these data and the Minister responsible for electronic communications." ;
4. Considering that, according to Article L. 246-4 of the same Code, in its wording resulting from the law of 18 December 2013: The National Commission for the Control of Security Intercepts shall have permanent access to the collection of information or documents implemented under this Chapter, in order to carry out checks to ensure that Compliance with the conditions laid down in Articles L. 246-1 to L. 246-3. In the event of non-compliance, it makes a recommendation to the Prime Minister. The Committee shall inform the Commission, within 15 days, of the measures taken to remedy the failure to fulfil obligations.
" The arrangements for the application of this Article shall be fixed by decree in the Council of State, taken after notice of the National Commission on Informatics and Liberties and the National Commission for the Control of Security Intercepts, which specifies, in particular, the procedure for monitoring applications and the conditions and duration for the retention of information or Documents transmitted." ;
5. Considering that, according to Article L. 246-5 of the same Code, in its drafting resulting from the law of 18 December 2013: The identifiable and specific additional costs incurred by the operators and persons referred to in Article L. 246-1 in response to such requests shall be subject to financial compensation by the State. ' ;
6. Taking the view that the applicants' associations submit, on the one hand, that by establishing by the contested provisions an administrative requisition procedure for connection data without defining precisely the type of data which may be Collected by the administrative authority and the conditions of their collection when they are transmitted in real time to the administrative authority and, on the other hand, that by not providing in the framework of this procedure no specific guarantee for Protect the professional secrecy of lawyers and journalists, Unknown to the extent of its competence;
7. Considering that the priority issue of constitutionality relates to articles L. 246-1 and L. 246-3 of the internal security code;
On the grievance alleging negative incompetence resulting from the insufficient definition of connection data and the conditions of their collection in case of real-time transmission:
8. Considering that the applicants'associations submit, on the one hand, that by using the terms' information or documents' And those of "electronic communications operator" InArticle L. 246-1 of the Internal Security Code, the legislator did not define the data sufficiently precisely Of connection which may be collected by the administrative authority upon requisition and, on the other hand, by using the terms of " Network solicitation " In Article L. 246-3 of the same Code, it did not exclude the possibility for that authority to have direct access to the connection data held by the electronic communications operators in the context of that same procedure; that it would result A lack of understanding by the legislator of the extent of its jurisdiction in conditions affecting the right to privacy;
9. Considering that the legislature's lack of knowledge of its own jurisdiction can be relied on in support of a priority question of constitutionality only in the case where such knowledge affects by itself a right or freedom that the Constitution guarantees;
10. Considering that under Article 34 of the Constitution: The law sets out the rules concerning ... the fundamental guarantees given to citizens for the exercise of civil liberties " ; that the legislator's lack of knowledge of its jurisdiction, in the determination of these guarantees in the context of a procedure for the administrative requisition of connection data, affects by itself the right to respect for privacy;
11. In the first place, first, on the one hand, that, under the terms ofL. 246-1 of the Internal Security, the procedure for Collection of connection data on administrative requisition may be exercised with the electronic communications operators and the persons mentioned in article L. 34-1 of the postal code and electronic communications as well as the persons mentioned at 1 and 2 of paragraph I of article 6 of the Law of June 21, 2004 mentioned above ; that the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006070987&idArticle=LEGIARTI000006465394&dateTexte= &categorieLink = cid"> article L. 32 of the postal code and electronic communications defines in its 1 ° electronic communications as " Emissions, transmissions or receptions of signs, signals, writings, images or sounds, by electromagnetic means " And in its 15 ° the operator as " Any natural or legal person operating a network of electronic communications open to the public or providing the public with an electronic communications service " ; that paragraph II of Article L. 34-1 of the same Code provides for its application to electronic communications operators, and in particular to persons whose activity is to provide access to communication services to the public on-line, and to Persons who provide the public with electronic communications services, as well as to persons who, in respect of a principal or ancillary professional activity, provide the public with a connection allowing an online communication by Access to the network; and the persons mentioned in 1 and 2 of the Paragraph I of Article 6 of the Act of 21 June 2004 is those whose activity is to provide access to communication services to the public online and those which ensure, even free of charge, for the making available to the public by services of Communication to the public online, the storage of signals, writings, images, sounds or messages of any nature provided by recipients of such services;
12. Considering, on the other hand, that under the same Article L. 246-1, information or documents processed or retained by the electronic communications networks or services of persons may be collected by the administrative authority Mentioned above; that, according to the provisions of article L. 34-1 of the code of posts and electronic communications, Retained and processed data are exclusively for Identification of the users of the services provided by the operators, the technical characteristics of the communications provided by the operators and the location of the terminal equipment and cannot in any case relate to The content of the correspondence exchanged or the information consulted, in any form, in the context of such communications; that, according to Article 6, paragraph II, of the Act of 21 June 2004, the data kept are those of Nature to allow the identification of anyone who contributed to the creation of the content Or one of the contents of the services of which they are service providers; thus, the legislator has sufficiently defined the connection data, which cannot relate to the content of correspondence or the information consulted;
13. Considering, second, that it is clear from Article L. 246-1 that the required connection data are transmitted by the operators to the competent administrative authorities; that, according to Article L. 246-3, when the connection data are Transmitted in real time to the administrative authority, they can be collected only after " Solicitation " Of its network by the operator; that, as a result, the administrative authorities cannot directly access the network of operators in accordance with the procedure laid down in Articles L. 246-1 and L. 246-3;
14. Considering that it follows from the foregoing that the complaint alleging that the legislator does not define precisely the procedure for the administrative requisition of connection data held and dealt with by the communications operators Disregard the extent of its jurisdiction in conditions affecting the right to privacy must be dismissed;
On the complaint alleging negative incompetence resulting from the absence of guarantees to protect secrecy Lawyers and journalists professional:
15. Taking the view that the applicants' associations submit that the legislature, by failing to provide for specific guarantees of nature to protect access to the connection data of lawyers and journalists, has disregarded the extent of its competence in Conditions affecting the right to respect for privacy, freedom of expression and communication, and the rights of the defence and the right to a fair trial, the right to trade secret and the correspondence of lawyers and the right to a fair trial The right to secrecy of journalists' sources;
16. Considering that it is for the legislator to ensure conciliation between, on the one hand, the prevention of infringements of public order and offences, necessary for the protection of rights and principles of constitutional value, and, on the other hand, The exercise of constitutionally guaranteed rights and freedoms; that the latter include the right to respect for privacy and the secrecy of correspondence, freedom of expression, rights of defence and the right to a trial Equitable, protected by Articles 2, 4, 11 and 16 of the Bill of Rights The man and the citizen of 1789; whereas, on the other hand, no constitutional provision specifically entrenches a right to the secret of exchanges and correspondence of lawyers and a right to secrecy of the sources of journalists;
17. Considering, first, that the contested provisions establish a procedure for the administrative requisition of connection data precluding access to the content of correspondence; that, as a result, they cannot disregard the right to the Secrecy of correspondence and freedom of expression;
18. Considering, second, that, in addition to the fact that it cannot relate to the content of correspondence, the administrative requisition procedure resulting from the contested provisions is authorised solely for the purpose of collecting information National security, the safeguarding of the essential elements of France's scientific and economic potential or the prevention of terrorism, organised crime and crime, and the reconstitution or maintenance of Dissolved groups; that it is implemented by specially empowered staff; That it is subject to the prior agreement of a qualified person, placed with the Prime Minister, appointed by the National Commission for the Control of Security Intercepts; that, if the authorisation to collect data in real time is Issued by the Prime Minister, this authorisation shall be subject to the control of the National Commission for the Control of Security Intercepts; that the latter shall have permanent access to the collection of information or documents and Address recommendations to the Minister of the Interior or the Premier Where the Minister finds a breach of the rules laid down or an infringement of rights and freedoms and Article 226-13 of the Criminal Code : The disclosure of information of a secret nature by a person who is in custody either by state or by profession, either because of a temporary duty or function, is punishable by one year's imprisonment and a fine of 15 000 euros." ;
19. Taking the view that it follows from the foregoing that the legislature has provided sufficient guarantees so that it does not result from the procedure laid down in Articles L. 246-1 and L. 246-3 of the Internal Security Code a disproportionate violation of the right to respect for private life, the rights of the defence, the right to a fair trial, including for lawyers and journalists; that the complaint Failure to exercise its jurisdiction by failing to provide for specific guarantees to protect the professional secrecy of lawyers and journalists must be rejected;
20. Considering that it follows from all the foregoing that the contested provisions, which are contrary to any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution,
Decides:
This decision will be published in the Official Journal of the French Republic and Notified under the conditions laid down inArticle 23-11 of the Order of 7 November 1958 aforesaid.
Delivered by the Constitutional Council at its meeting on 23 July 2015, attended by Mr Jean-Louis DEBRÉ, President, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Lionel JOSPIN, and Nicole MAESTRACCI.
Public Rendu 24 July 2015.
