Victory for the Exegetes Amateurs! French Surveillance Overturned by Constitutional Council
Paris, 21 October 2016 — The French Constitutional Council overturned this morning the article of the 2015 French Surveillance Law on radio surveillance. Following a Priority Preliminary ruling on the issue of constitutionality (QPC)1 submitted 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 the disproportionate surveillance promoted by Manuel Valls's government. La Quadrature du Net is happy with this decision, which comes into immediate effect (although deploring the extended time allowed the legislature to comply with this decision in the long term), and calls on all citizens concerned with civil liberties to support the tireless judicial and technical work accomplished with our friends at FDN and the FDN Federation.
The French Constitutional Council has just released its decision in response to the QPC raised by the Exegetes Amateurs on radio surveillance. The Constitutional Council adopts our arguments and admits the unconstitutionality of article L. 811-5 of the Internal Security Code. This article enabled surveillance of radio 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 overturning article L. 811-5 by fourteen months (until 31 December 2017), it has, however, nullified it as of today. Indeed, the provisions overturned cannot currently be "used as basis for measures of interception of communications, collection of traffic data or capture of electronic data" in France or 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 verify that those new limits are not exceeded (although we deplore that control has not been given to an authority offering better structural guarantees and having the resources to ensure its effectiveness). Moreover, since the Constitutional Council does not specify more precisely which measures of article L. 811-5 could survive those limits, we hope that the CNCTR will, for instance in its annual report to be published soon, explain this issue more practically.
Today's decision is an undeniable success because it ends unconstitutional and disproportionate measures that infringe on privacy and civil liberties. By depriving intelligence services of 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 implementing decrees.
It shows how specific and persistent work can still change the law even after an unfortunate legislative decision. This is 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 check 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.