The Constitutional Council censors access to connection data without prior control by the judge

The Constitutional Council censored in a ruling issued this Friday, December 3, 2021, a set of provisions that authorized the requisition by the Public Ministry of connection data – colloquially called “fadettes” – as part of a preliminary investigation. In fact, it ruled that certain provisions of the Code of Criminal Procedure were contrary to the Constitution because they violated privacy.

In this case, it was a matter of priority constitutionality (QPC) that allows any litigant to challenge the constitutionality of a law that violates the rights and freedoms guaranteed by the Constitution.

Access connection data as part of a survey

In detail, the applicants referred to two articles. The first, article 77-1-1 of the Criminal Procedure Code, allows the Public Ministry to request “information held by any public or private person, including that resulting from a computer system or the processing of personal data, without being able to oppose it, without legitimate reason, the obligation of professional secrecy. ”This power is part of a preliminary investigation.

The second, article 77-1-2 of the Criminal Procedure Code, allows an agent or agent of the judicial police to request from a public or private body “the supply of information not protected by means of a secret provided for by law, contained in a computer system or processing of personal data “. The prosecutor must give his approval.

A single contested authorized

The plaintiffs criticized these provisions for allowing access to health data under the sole authorization of the prosecutor who, it should be remembered, is under the authority of the Guardian of the Seals, Minister of Justice. They believe that prior verification by an “independent” court should be required. Otherwise, this system violates the right to privacy, the rights of defense and the right to an effective remedy, the plaintiffs argued.

The Constitutional Council agreed with them when considering that “the legislator did not surround the procedure (…) with specific guarantees to ensure a balance between, on the one hand, the right to respect for private life and, on the other, the search of the perpetrators “.

In effect, remember that the connection data contain sensitive information related to “the identification of people, their location and their telephone and digital contacts, as well as the public online communication services that they consult”. In addition, the requisition of these data is authorized for any type of infraction and is not justified by urgency or limited in time.

Repeal postponed to December 31, 2022

Aware that its decision has significant consequences on the daily practice of the police, the Constitutional Council postpones the date of repeal of the contested articles until December 31, 2022. In fact, as Matthieu Audibert, a gendarmerie officer explains, in a tweet “within a year at most, [les officiers de police judiciaire] We will no longer be able to require, in a preliminary investigation, the operators to obtain facets (connection data) without the prior authorization of an independent magistrate ”.

Therefore, the legislator has almost a year to reform access to connection data as part of a preliminary investigation. But the site is far from simple. Indeed, a judgment of the Court of Justice of the European Union issued on March 2, 2021 ruled that the authority responsible for the control prior to access to data must have “the quality of third parties” and must not be involved “in the process . carrying out the criminal investigation in question “. In practice, this excludes the prosecutor and the investigating judge.

France faces Europe

On the subject of connection data and metadata, France had started a real confrontation with Europe, believing that European jurisprudence was contrary to “the constitutional identity of France”, a deliberately vague notion.

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