THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 16 September 2016 by the Conseil d’État (decision no. 402941 of that same date), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. Raïme A. by Ms. Amandine Dravigny, Esq., attorney admitted to the Besançon bar. It was recorded by the General Secretariat of the Constitutional Council under number 2016-600 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees in the third through the tenth sub-paragraphs of paragraph I of Article II of Law number 55-385 of 3 April 1955 relating to states of emergency, in its report from Law number 2016-987 of 21 July 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism.
In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Basic Law on the Constitutional Council;
- Law no. 55-385 of 3 April 1955 on states of emergency;
- Law no. 2016-987 of 21 July 2016 extending the application of Law no. 55-385 of 3 April 1955 on states of emergency and regarding reinforcement measures in the fight against terrorism;
- Decision no. 2016-536 QPC of the Constitutional Council of 19 February 2016;
- The Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;
In light of the following items:
- the observations presented on behalf of the applicant by Ms. Dravigny, Esq., registered on 24 October 2016;
- the observations presented by the Prime Minister, registered on 10 October 2016;
- the observations in response presented by SCP Spinosi et Sureau, attorneys at the Conseil d'État and the Cour de cassation, recorded on 10 and 21 October 2016 for the associations La Ligue des droits de l’Homme [the French Human Rights League], La Quadrature du Net [a French digital rights advocacy group], the French Data Network and the Internet Service Providers Association;
- the documents produced and appended to the case file;
Having heard Ms. Dravigny, Esq. for the applicant, Mr. Patrice Spinosi, Esq., attorney at the Conseil d’État and the Cour de cassation, for the intervening parties, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 22 November 2016;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDES ON THE FOLLOWING:
1. Paragraph I of Article 11 of the Law of 3 April 1955 mentioned hereinabove, in its report from the Law of 21 July 2016 mentioned hereinabove, determines the rules for searches and administrative seizures within the framework of states of emergency, Its third through its tenth sub-paragraphs state:
"When a search reveals that another location meets the conditions established in the first sub-paragraph of this Article I, the administrative authority may authorise, by any means, a search thereof. This authorisation shall be legitimised as soon as possible. The Public Prosecutor shall be informed without delay.
"Access may be gained using a computer system or terminal equipment present at the locations where the search is carried out to data stored on the said system or equipment or in another computer system or terminal equipment, provided that this data is accessible from the initial system or available to the initial system.
"If the search reveals the existence of elements, specifically computer technology elements, related to threats to security and public safety brought on by the behaviour of the person in question, the data contained on any computer system or terminal equipment present on the location of this search may be seized, either the copy of it or the medium it is stored on when the copy cannot be obtained or finished during the time of the search.
"Copying data or seizing computer systems or terminal equipment shall be carried out in the presence of a police officer. The agent responsible for the search shall draw up a report of the seizure that will include the motives and an inventory of the seized equipment. A copy of this seizure report shall be supplied to the persons mentioned in the second sub-paragraph of this Article I. The seized data and media shall be held under the responsibility of the official having initiated the search. From the time of the seizure, no one may have access to it without the authorisation of a judge.
"The administrative authority, once the search is concluded, shall seek authorisation from the urgent applications judge of the competent court to examine the seized equipment. In light of the elements of the search, the judge shall decide on the regularity of the seizure and the administrative authority's request, within forty-eight hours from the seizure. Excluded from authorisation are the elements related to any threat to public security and safety brought on by the behaviour of the person in question. In the event the urgent applications judge refuses, and subject to the appeal mentioned in the tenth sub-paragraph of this Article I, the copied data shall be destroyed and the seized media shall be returned to their owner.
"During the time that is strictly required for their examination authorised by the urgent applications judge, the seized data and media shall be held under the responsibility of the official having initiated the search. The computer systems or the terminal equipment shall be returned to their owner, depending on the case, once a copy of the data contained has been made, within a maximum time frame of fifteen days from the date of their seizure or the date when the urgent applications judge, within the time frame set out, authorised the examination of the data it contains. With the exception of those elements that are related to any threat to security and public safety brought on by the behaviour of the person in question, the copied data shall be destroyed within a maximum time frame of three months from the date of the search or the date when the urgent applications judge, within the time frame set out, authorised the examination of the data.
"In the event there is difficulty in accessing the data contained on the seized media or in accessing the copied data, when it is necessary, the aforementioned deadlines in the eighth sub-paragraph of this Article I may be extended, for the same time frame, by the competent urgent applications judge within forty-eight hours of these deadlines expiring. The urgent applications judge shall decide on the extension requested by the administrative authority within forty-eight hours. If examination of the seized data and media leads to findings of an infraction, these data and media shall be held according to the applicable regulations regarding criminal procedure.
"Pursuant to this Article, the urgent applications judge shall be from the administrative court where the search is performed. He or she shall rule under the procedures described in Volume V of the Code of Administrative Justice, subject to this Article. The decisions are subject to appeal before the urgent applications judge of the Conseil d'État within forty-eight hours from their notification. The urgent applications judge of the Conseil d'État shall decide within forty-eight hours. In the case of an appeal, the seized data and media shall remain held under the conditions mentioned in the eighth sub-paragraph of this Article 1".
2. According to the applicant, in allowing the seizure of data and computer equipment during an administrative search within the framework of states of emergency, without prior authorisation of a judge and without sufficiently limiting the conditions for accessing the seized data, these provisions disregard the right to respect for private life and the right to property. For these same reasons, the intervening parties deem that, on the one hand, these provisions infringe disproportionately on the right to respect for private life and the right to effective legal recourse, and on the other hand, that the legislature disregarded the extent of its competence in the conditions that affect these same rights.
3. As a result, the application for a priority preliminary ruling on the issue of constitutionality concerns the fourth through the tenth sub-paragraphs of Article 11 of the Law of 3 April 1955;
- On admissibility:
4. Pursuant to the provisions of the third sub-paragraph of Article 23-2 and the third sub-paragraph of Article 23-5 of the Ordinance of 7 November 1958 mentioned hereinabove, the Constitutional Council shall not decide on a priority preliminary ruling on a provision already declared constitutional on the grounds and procedures of a decision of the Constitutional Council, except due to a change in circumstances.
5. In its decision of 19 February 2016 mentioned hereinabove, the Constitutional Council specifically examined the provisions of the first sentence of the third sub-paragraph of paragraph I of Article 11 of the Law of 3 April 1955. It declared them constitutional on the grounds and procedures of this decision. Henceforth, in the absence of a change in circumstances, there cannot be a new examination of these provisions, now contained in the fourth sub-paragraph of this same paragraph I, in its report from the Law of 21 July 2016.
- On the merits:
. Regarding the right to respect for private life and the right to effective legal recourse:
6. The Constitution does not exclude the possibility for the legislature to lay out a regime for states of emergency. In this framework, it is its responsibility to ensure harmonisation between, on the one hand, safeguarding against attacks on public safety, and on the other hand, respecting the rights and freedoms granted to all those who live on French soil. Among these rights and freedoms is the right to respect for private life, specifically the sanctity of the home, protected under Article 2 of the 1789 Declaration of the Rights of Man and the Citizen.
7. According to Article 16 of the 1789 Declaration: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”. It follows from this provision that there shall be no substantial infringement on the rights of individuals seeking effective recourse before a court of law.
8. Pursuant to the first sub-paragraph of paragraph I of Article 11 of the Law of 3 April 1955, upon a Decree declaring a state of emergency or the law expressly extending it, the administrative authority may, under certain conditions, order searches in any location, including a home, day or night, "when there exists serious reasons to think that this location is frequented by a person whose behaviour constitutes a threat to security and public safety". The contested provisions authorise, during such searches, the seizure of data contained on any computer system or terminal equipment found at the locations or in another computer system or terminal equipment, provided that this data is accessible from or available to the initial system. This seizure is undertaken either by copying this data, or by seizing the medium that contains it. The contested provisions determine the conditions for examining and storing this data by an administrative authority, under the control of the administrative judge.
- Regarding the seizure and examination of computer data:
9. Firstly, the measures set out in the contested provisions may only be undertaken if a state of emergency has been declared and only in locations covered by this state of emergency. This state of emergency may be declared, pursuant to Article 1 of the Law of 3 April 1955, "in the case of imminent peril resulting from a serious attack on public safety" or "in the case of events that, by their nature or gravity, present a public disaster".
10. Secondly, copying computer data may only be undertaken if the search reveals the existence of elements related to threats to security and public safety brought on by the behaviour of the person about whom this search is performed.
11. Thirdly, seizing computer data shall be carried out in the presence of a police officer. It can only be undertaken if a report is drawn up including the motives for it and a copy of it shall be supplied to the Public Prosecutor as well as the occupant of the location, to his or her representative or to two witnesses.
12. Lastly, the examination of the seized data requires prior authorisation of the urgent applications judge of the competent administration, who is asked to rule on this by the administrative authority once the search is performed. This authorisation only relates to elements that present any threat to security and public safety brought on by the behaviour of the person about whom this search is performed. While awaiting the judge's decision, the data shall be placed under the responsibility of the official having initiated the search and no one may have access to it.
13. Additionally, the contested provisions define the motives that justify the seizure of computer data, determine the terms of its implementation and impose prior authorisation, by a judge, of the examination of the collected data, which cannot be performed upon data not linked to the threat. By laying out these different legal guarantees, regarding the seizure and examination of computer data, the legislature has ensured a harmonisation that is not necessarily out of balance between the right to respect for private life and the constitutional objective of safeguarding against attacks on public safety. Nor has it disregarded the right to effective legal recourse.
- Regarding the storage of seized computer data:
14. If the judge rejects the request to authorise the examination of computer data, the copied data shall, subject to appeal to an urgent applications judge of the Conseil d'État, be destroyed without delay. If the judge authorises its examination, the data shall be kept under the responsibility of the official having initiated the search during the time that is strictly required for its examination.
15. In any case, at the end of a three-month period from the date of the search or the date when the urgent applications judge authorised the examination of the data, the copied data, with the exception of data that is related to the threat that led to its seizure, shall be destroyed. This deadline may be extended, for the same time frame, only by the competent urgent applications judge in the case where there are difficulties examining the seized data. If examination of the seized data leads to findings of an infraction, the data shall be held according to the applicable regulations regarding criminal procedure.
16. However, if the copied data regarding a threat does not lead to findings of an infraction, the legislature has not set out a deadline, once a state of emergency has ended, upon which this data shall be destroyed. Consequently, the legislature has not, regarding the storage of this computer data, laid out proper legal guarantees to ensure balanced harmonisation between the right to respect for private life and the constitutional objective of safeguarding against attacks on public safety, Therefore, the words: "With the exception of those elements that are related to any threat to security and public safety brought on by the behaviour of the person in question," in the last sentence of the eighth sub-paragraph of paragraph I of Article 11 of the Law of 3 April 1955, should be declared unconstitutional.
. With regard to the right to property:
17. Property is included under the human rights established by Articles 2 and 17 of the 1789 Declaration. Pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; In the absence of depriving the right to property under this Article, Article 2 of the 1789 Declaration states nevertheless that infringement of this right must be justified by general interest and proportional to the objective sought.
18. Firstly, when there is an administrative search within the framework of a state of emergency, the seizure of computer systems or terminal equipment is indicated in the legal guarantees mentioned in paragraphs 9 to 12 and 14 of this decision.
19. Secondly, the contested provisions only authorise the seizure of such systems and terminals when a copy of the data that they contain cannot be obtained or finished during the time of the search. This impossibility must be justified by the administrative authority when it requests authorisation from a judge to examine the data found on these media. Furthermore, there must be a report drawn up with an inventory of the seized equipment.
20. Lastly, the seized systems and equipment shall be returned to their owner, depending on the case, once a copy of the data contained has been made, within a maximum time frame of fifteen days from the date of their seizure or the date when the urgent applications judge authorised the examination of the data. This deadline may be extended, for the same time frame, only by the competent urgent applications judge in the case where there are difficulties gaining access to the data stored in the seized media.
21. The copying of computer data in the same location as the search involves particular limitations, specifically related to the length of the operation and technical difficulties in accessing the data. Consequently, given the legal guarantees mentioned hereinabove, by allowing the seizure of computer equipment without prior authorisation of a judge during an administrative search within the framework of a state of emergency, the legislature has ensured a harmonisation that is not necessarily out of balance between property rights and the constitutional objective of safeguarding against attacks on public safety.
22. It follows from all of the foregoing that, apart from the words: "With the exception of those elements that are related to any threat to security and public safety brought on by the behaviour of the person in question," the fifth through the tenth sub-paragraphs of paragraph I of Article 11 of the Law of 3 April 1955, which are not tarnished by incompetence and have no disregard towards any right or liberty that the Constitution guarantees, should be declared constitutional.
- On the Effects of the Ruling of Unconstitutionality:
23. According to the second sub-paragraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision shall be liable to be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter, and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.
24. The immediate repeal of the words: "With the exception of those elements that are related to any threat to security and public safety brought on by the behaviour of the person in question," in the last sentence of the eighth sub-paragraph of paragraph I of Article 11 of the Law of 3 April 1955, would lead to manifestly excessive consequences. In order to allow the legislature to rectify this unconstitutionality, the date of this repeal should be deferred to 1 March 2017.
THE CONSTITUTIONAL COUNCIL RULES:
Article 1 - It is unnecessary to give judgement on the fourth sub-paragraph of paragraph I of Article II of Law number 55-385 of 3 April 1955 relating to states of emergency, in its report from Law number 2016-987 of 21 July 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism.
Article 2. - The words: "With the exception of those elements that are related to any threat to security and public safety brought on by the behaviour of the person in question," in the last sentence of the eighth sub-paragraph of paragraph I of Article 11 of the Law of 3 April 1955, relating to states of emergency, in its report from Law number 2016-987 of 21 July 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism are unconstitutional.
Article 3. - The declaration of unconstitutionality of Article 2 shall take effect under the conditions set out in paragraph 24 of this decision.
Article 4. - The rest of the provisions of the fifth through the tenth sub-paragraphs of paragraph I of Article 11 of the Law no. 55-385 of 3 April 1955 relating to states of emergency, in its report from Law number 2016-987 of 21 July 2016, extending the enforcement of Law number 55-385 of 3 April 1955 relating to states of emergency and regarding reinforcement measures in the fight against terrorism are constitutional.
Article 5.- This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.