(Sept. 29, 2016) On August 12, 2016, a judge of the Conseil d’État (the highest administrative jurisdiction in France) authorized the use of the data stored in a cell phone that had been seized during a search ordered on the basis of the Law on the State of Emergency. (CE, ordonnance du 12 août 2016, Ministère de l’intérieur c/ M. B…, N° 402348 [State Council, Order of August 12, 2016, Ministry of the Interior v. Mr. B… No. 402348], Conseil d’État website; Loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence [Law No. 55-385 of April 3, 1955, on the State of Emergency], LEGIFRANCE.)
Law enforcement authorities seized a cell phone during the search of a home on August 4, 2016, and captured and copied the data on the cell phone. The local prefect then asked an administrative court to authorize use of the data, but his request was denied on August 8. On August 10, the Minister of the Interior appealed to the Conseil d’État, which set aside the decision of the administrative court and authorized use of the data. (Saisies réalisées dans le cadre de l’état d’urgence et exploitation des données [Seizures Made Under the Framework of a State of Emergency and the Use of Data], Conseil d’État website (Aug. 12, 2016).)
The authorization given by the Conseil d’État judge to law enforcement to use the cell phone data was principally based on three findings: the data capture was done in compliance with the rules defined by the relevant legislation; a report issued after the search mentioned that the owner of the cell phone had told investigators he was using the phone and its wireless connection to share videos and images related to the Syrian conflict and the Islamic State of Iraq and Syria (ISIS); and, during the hearing, the applicant had admitted to using his cell phone to post, share, and comment on pictures and videos on current events in Syria. The Conseil d’État judge held that the cell phone was likely to contain data about a potential threat to security and public order. Moreover, the owner of the cell phone had not opposed the use of the data by the authorities. (Id.)
Basis for the Authorization
The main legal basis for the decision is the 1955 Law on the State of Emergency. (Loi n° 55-385 du 3 avril 1955, supra.) This Law, which has been amended several times, permits the government to declare a State of Emergency and defines what that entails. The most recent amendment to the Law occurred in July 2016, with the adoption of a law extending the application of a State of Emergency. (Loi n° 2016-987 du 21 juillet 2016 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence et portant mesures de renforcement de la lutte antiterroriste [Law No. 2016-987 of July 21, 2016 Extending the Application of Law No. 55-385 of April 3, 1955, on the State of Emergency and Establishing Measures Strengthening Counter-Terrorism], LEGIFRANCE.) Under the legislation as it currently stands, the government is allowed to conduct searches in any place (with certain exceptions, such as places assigned to the exercise of a parliamentary mandate or places for the conducting of the professional activities of lawyers, magistrates or journalists) “when there are serious reasons for considering that this place […] is frequented by a person whose behavior is a threat to security and public order.” (Loi n° 55-385 du 3 avril 1955, art. 11.)
Data found during such a search may be seized on site, but the law enforcement authorities must then ask the administrative tribunal judge for permission to use it. (Id.) The administrative judge must decide within 48 hours whether to grant or deny that authorization. (Id.) The administrative judge’s decision can be appealed directly to a judge of the Conseil d’État, who then also has only 48 hours to decide. (Id.) To grant the authorization, the judge of the Conseil d’État must verify whether the seizure was done according to proper procedure and confirm that the evidence in question is indeed related to a threat to security and public order on the part of the suspect. (Saisies réalisées dans le cadre de l’état d’urgence, supra.)
Prepared by Ricardo Wicker, Law Library Intern, under the supervision of Nicolas Boring, Foreign Law Specialist.