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French Constitutional Council Strikes Down Data Copying During Warrantless Searches

Daniel Severson
Tuesday, February 23, 2016, 12:29 PM

On Friday, February 19, the Constitutional Council upheld two articles of the state-of-emergency law—meeting bans and warrantless searches—as constitutional, but struck down a provision allowing the police to copy data when conducting such searches. Separately, the French Parliament extended the state of emergency through the end of May.

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On Friday, February 19, the Constitutional Council upheld two articles of the state-of-emergency law—meeting bans and warrantless searches—as constitutional, but struck down a provision allowing the police to copy data when conducting such searches. Separately, the French Parliament extended the state of emergency through the end of May.

After having upheld the regime of house arrests on December 22, 2015, the Constitutional Council ruled on Friday on two additional provisions of the state-of-emergency law. The League of Human Rights initiated these priority issues of constitutionality, which the State Council referred to the Constitutional Council.

Under French law, any person who is involved in legal proceedings before a court can challenge a statutory provision as infringing rights and liberties guaranteed by the Constitution. The State Council refers such questions to the Constitutional Council for a priority preliminary ruling if the contested statute applies to the litigant, has not already been found constitutional, and presents a novel or serious question of law.

Digital searches require judicial authorization.

In the first case (opinion here), the League of Human Rights challenged article 11 of the state-of-emergency law. That article provides broad license for the government to conduct searches, including of homes, day and night. Paragraph 3 provided that when the police found a computer or server on the premises during a search the police could copy (in any medium) any data stored on or accessible from those systems. For example, if the police found a smartphone, tablet, or laptop, the police could seemingly copy any data on that device, as well as any data accessible over the cloud from that device.

The court held this provision unconstitutional and in violation of article 2 of the Declaration of the Rights of Man of 1789. The court reasoned that the legislature did not provide specific legal guarantees to ensure a fair balance between the constitutional objective of preserving public order and the right to respect for private life. The court compared data copying to a seizure, rather than a mere search. The court noted that the statute authorized such seizures without judicial control and even when the occupant of the place searched or the data owner opposed the measure and no crime had occurred. The court also expressed concern that under the statute the police might copy data wholly unrelated to a targeted person.

The police could be required to destroy immediately data copied since November 2015 under state-of-emergency searches.

The Constitutional Council’s decision took effect as of February 19, so the government will need new, more precise, and limited statutory authority to copy data during any future searches conducted pursuant to its emergency powers.

Thus far, over 3,000 searches conducted under the state-of-emergency law have turned up numerous drugs and weapons, but few terrorism cases; the government has opened just 23 investigations for support for terrorism and 5 for criminal association with a terrorist enterprise. The decision by the Constitutional Council does not automatically halt these investigations, but the decision opens the door for judicial redress.

Le Monde reports that in recent testimony before the National Assembly’s Committee of Laws Interior Minister Bernard Cazeneuve argued for an extension of the state of emergency (see below), suggesting that the low number of terrorism cases could grow as the government exploits more information: “We cannot know today how many persons will ultimately be implicated in terrorism offenses: most of the items recovered during searches have not yet been exploited, including computer data.” The Constitutional Council’s ruling means that data may now need to be destroyed, since there is no legal basis for its retention.

Warrantless searches are otherwise constitutional.

In the same case, the Constitutional Council otherwise upheld the statute’s administrative search provisions.

The League of Human Rights challenged those provisions on various grounds, including that warrantless searches infringe on the constitutional requirement for judicial supervision of measures affecting the inviolability of the home, that the provisions disproportionally infringe on personal freedom, right to privacy, and right to effective judicial relief, and that the provisions violate separation of powers.

The court dismissed the claim that the warrantless searches violated article 66 of the French Constitution, which entrusts protection of individual liberty to the judiciary. The Constitutional Council concluded that the warrantless searches do not affect individual liberty in the sense of article 66 and do not need to be placed under the direction or control of the judiciary.

The court also considered arguments that the provisions infringed on articles 2 and 16 of the Declaration of 1789 and article 34 of the Constitution. The court found no violations, reasoning that the Constitution does not exclude the possibility of a state of emergency and that the statute balances the need for public order with respect for rights and liberties.

The court highlighted the limits of emergency powers, including that measures can only be imposed during a declared state of emergency, within particular zones, and according to specific procedures, including that the order must specify the time and place of the search and that the search must be conducted in the presence of the judicial police.

Although the court upheld the warrantless searches, the court did note, however, that searches conducted at night must be justified by urgency or the impossibility of conducting them by day. And the court stated that the administrative judge (not the judiciary judge) is responsible for determining whether the measures taken are appropriate, necessary and proportionate to the objective sought.

Meeting bans are also constitutional.

In a separate decision issued the same day (opinion here), the court also held that article 8 of the state-of-emergency law is constitutional.

Article 8 provides that the government may order the temporary closure of theaters, pubs, and other meeting places, as well as prohibit meetings that may provoke public disorder.

The League of Human Rights challenged the provision on the grounds that it enables the government to close meeting places and prohibit assembly without specifying the reasons justifying such measures, without setting an end date, and without providing effective remedies.

In reasoning tracking the opinion on warrantless searches, the court concluded that the measures did not strike an unreasonable balance between freedom of expression and protecting national security. The court acknowledged that the authority to close theaters, pubs, and other meeting places and to prohibit assembly does restrain the liberty of “collective expression of ideas and opinions.”

But the court found that the legislature can impose limits if required by the constitution or justified by the public interest, as long as those limits do not result in disproportional harm. The court also noted that the contested provisions do not regulate freedom of assembly on public roads and that affected persons can challenge the measures before an administrative judge.

The French Parliament extended the state of emergency through May 26, 2016.

Separately, by wide margins the Parliament extended the state of emergency for another three months. The Senate approved the extension on February 9 by a vote of 316 for and 28 against. The National Assembly followed on February 16 with a vote of 212 for, 31 against, and 3 abstentions.

The statute provides that a state of emergency may be declared in case of “imminent danger.” Interior Minister Cazeneuve declared that the terrorist threat remains “as high as ever.”

Le Figaro and Huffington Post provide charts and statistics on the measures taken under the state of emergency as of February 16.

Daniel Severson is a Harvard Law School and Harvard Kennedy School graduate. He served as editor-in-chief of the Harvard International Law Journal and writes for Lawfare. Daniel was a Harvard University Presidential Public Service Fellow at the Defense Department, a Council of American Ambassadors Fellow at the State Department, and a Fulbright Scholar in Taiwan. He plays the French horn.

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