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Victory for the Exegetes Amateurs! French Surveillance Censored by Constitutional Council
October 2016 by La Quadrature du Net
The French Constitutional Council has censored this morning the article of the 2015 French Surveillance Law on radio wave surveillance. Following a Priority Preliminary ruling on the issue of constitutionality (QPC)1 tabled by the Exegetes Amateurs (FDN Federation, FDN and La Quadrature du Net and the Igwan.net NGO), this is a clear victory for advocates of privacy against disproportionate surveillance promoted by Manuel Valls’ government. La Quadrature du Net is glad with this decision which effects are to be applied immediately (although regretting the extended time given to the legislator to conform to this decision in the long term) and calls on all citizens concerned with civil rights to support the tireless judicial and technical work accomplished with our friends of FDN and the FDN Federation.
The French Constitutional Council has just released its decision and answered the QPC raised by the Exegetes Amateurs on radio wave surveillance. The Constitutional Council takes up our arguments and admits the unconstitutionality of article L. 811-5 of the Internal Security Code. This article enabled surveillance of radio wave communication, not subject to "any substantive or procedural conditions" and its application not subject to "any guarantee".
Even if the Constitutional Council has decided to formally delay all the effects of the censorship of article L. 811-5 by fourteen months (until the 31 December 2017), it has however nullified it as of today. Indeed, the provisions censored cannot currently be "used as basis for measures of interception of communications, collection of traffic data or capture of electronic data" in France and at the international level. The only measures that may still be applied on the basis of this article seem to exclude any kind of privacy infringement.
Furthermore, the Council has ordered that all measures taken on the basis of this article must be communicated to the CNCTR2 so the committee can check those new limits are not exceeded (although we can regret that control has not been given to an authority offering better structural guarantees and having enough resources to ensure its efficiency). Plus, as the Constitutional Council does not give more precisions on the measures of article L. 811-5 that could survive those limits, we hope that the CNCTR will, for instance in its annual report to be published soon, give more practical explanations on this issue.
Today’s decision is an undeniable success because it ends unconstitutional and disproportionate measures that infringe on privacy and liberties. By depriving intelligence services of a legal cover unleashing all kinds of illegal surveillance measures, this decision is a first victory in the procedure instituted by the Exegetes Amateurs against the Surveillance Law and its implementation decrees.
It shows how a precise and persistent work can still change the law even after an unfortunate vote. This is an encouragement to keep fighting for the protection of freedoms and the rule of law.
• 1. This action is a French Constitutional Law procedure allowing parties involved in a pending case to ask the Constitutional Council to control the constitutionality of laws related to the case at hand.
• 2. National Committee of Control of Intelligence Measures, oversight committee created by the 2015 Surveillance Law.
