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France; France: Parliament Adopts New Surveillance Legislation

(July 10, 2015) Controversial national intelligence and surveillance legislation was adopted by the French Senate on June 23, 2015, and by the National Assembly on June 24, 2015. (Police et sécurité: renseignement, Assemblée Nationale website (last visited July 9, 2015).) This action follows a long legislative process that involved the establishment of a joint commission to draft a compromise between the two chambers’ different versions of the proposed law. (Id.)

The law is currently being reviewed by the Conseil Constitutionnel (Constitutional Council), the judicial body tasked with verifying the constitutional validity of legislation, at the request of the President of the Republic, François Hollande, the President of the Senate, Gérard Larcher, and hundreds of members of the opposition in the National Assembly. Ultimately, the Conseil will have to decide whether or not the law causes a disproportionate interference with individual liberties. (Franck Johannès, La loi renseignement définitivement adoptée, LE MONDE (June 25, 2015); Police et sécurité : renseignement, supra.)

The government, led by Prime Minister Manuel Valls, says that “[i]n the current context, international as well as domestic, improving intelligence policy, with strict respect for individual freedoms, is necessary.” For the latter, moreover, it is increasingly important to “regulate the use of intelligence-gathering techniques to enhance the protection of individual freedoms while securing the actions taken by the specialized authorities.” (Un projet de loi pour renforcer les services de renseignement, Sénat website (last updated June 26, 2015) [scroll down to Comprendre les enjeux].)

Features of the Legislation

Among other things, the legislation provides for the creation of a new, independent administrative authority, the Commission nationale de controle des techniques de renseignement (CNCTR) [National Commission on the Control of Technical Intelligence Techniques], which would eventually be called upon to replace the Commission nationale de contrôle des interceptions de sécurité (CNCIS) [National Security Interceptions Control Commission]. Comprising nine members appointed by decree – two magistrates or former magistrates, two members or former members of the Conseil d’État (the highest administrative jurisdiction in France), two senators, two members of the National Assembly, and an electronic communications expert – the Commission would have to produce a report prior to any authorization being given by the Prime Minister to implement an intelligence-gathering method, except in cases of emergency. (Projet de loi relatif au renseignement, arts. L. 831-1 & L. 821-1 (Mar. 15, 2015), Assemblée Nationale website.)

The text also establishes a right of recourse to the Conseil d’État, open to any citizen with a direct and personal interest, to challenge the use of an intelligence-gathering technique. (Id. arts. L. 833-3 & L. 841-1.) The CNCTR would also be able to refer to the Conseil d’État when it considers an authorization to have been granted illegally. (Id. arts. L. 821-6 & L. 853-2.) In such cases, the Conseil d’État would have the power to invalidate the contested decision, compensate the applicant, order the destruction of the collected data, and request the involvement of the Public Prosecutor if it believes an offense has been committed. (Id. art. L. 773-7.)

Prepared by Geneviève Claveau, Law Library Intern, under the supervision of Nicolas Boring, Foreign Law Specialist.