Ruling against intelligence: signs of a half win?

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Hearing before the Conseil d’État is in two days, on April 16th, and the Advocate General just revealed the direction of the opinion he will release in our huge case against mass telecom surveillance.

If this opinion won’t bind the Conseil d’État, it reveals first signs of what we can hope to win and what we may lose in this 6-year old case.

Half win

On the winning side, the advocate general disagrees with the French government’s desire to put France out of compliance with the European Union law. Thus, basically, the AG asks for the repeal of the government’s decrees that require telecom operators to retain metadata of the entire population for one year (list of phone calls, connections made on relay antennas, etc.). As the Court of Justice of the EU requested, such a bulk retention can only be enforced during states of security emergency — French law fails to comply with this requirement.

More good news: the AG requires that intelligence services can access to metadata or traffic data only during times of state of security emergency, and after being subjected to effective review by an independent administrative body whose decision is binding. Today, the CNCTR (national commission for control of intelligence techniques) oversees the intelligence services, but its goal is limited to releasing non-bindings opinions. Here again, the CJEU asked France to patch this breach and the AG asks the Conseil d’État to do so.

Half loss

Unfortunately, beside those two key points, the AG’s opinion is negative regarding three other elements.

Firstly, and in contradiction with CJEU’s requirements, the AG doesn’t ask for the repeal of the government’s decrees that create an obligation for hosting providers to retain, for a period of one year, IP addresses of any user that publishes a content on their online services. If the Conseil d’État follows its AG on this point, that would be a breach of EU requirements regarding the protection of online anonymity.

Secondly, the AG doesn’t require intelligence services to end algorithmic surveillance deployed on telecom networks to automatically detect new targets. However, here again, the CJEU wants this type of surveillance to be limited to states of security emergency only — such a limit currently not in the French law.

Thirdly, the AG suggests to grant the government a 6-month delay to change the French law in order to comply with the EU obligations. However, the CJEU expressly rejected the possibility of such a delay: the French government has known for several years that France is infringing EU law and there is therefore no pragmatic reason to delay the protection of our fundamental rights.

Unclear future

If the AG’s opinion seems to shape a half win (similar to what we call a victory in defeat regarding the CJEU ruling last October), future remains mostly unclear. Our case has a very unusual political dimension as it has consequences for the future of intelligence services and for the importance of France in the EU. This case is so crucial that the upcoming ruling will be an Assembly decision of the Conseil d’État, the most important composition of the court.

Therefore, we are prepared for any unexpected developments, including the possibility driven by the protection of fundamental rights: that the Conseil d’État doesn’t stop to the half concession the AG proposes, but that the court fully complies with the CJEU ruling by protecting anonymity on the Internet and refusing with no delay any mass surveillance.