France’s surveillance loophole for wireless communications
This case is tied to the more general challenging off all intelligence powers by the litigation coalition the Exegetes created by Hugo Roy and gathering French Data Network, the federation of non-profit French ISPs FFDN and la Quadrature du Net.
This case was started when the Exegetes were about to start the litigation against the surveillance regime set up by the 2015 Intelligence Laws of France, passed in a hurry after the 2015 Paris terrorist attacks (e.g. Charlie Hebdo). We were about to send our first briefs to the top administrative court, the Conseil d'État, when it struck us that a preexisting legal clause of 1991 was voiding our work of its value due to the size of the loophole it created. Indeed, the 1991 clause states that every communication through hertzian waves could be surveilled without any rule of law safeguards. A technical member of the group pointed out that hertzian waves were in fact all wireless communications. Before sending our briefs on the intelligence powers reform we therefore paused work and referred the 1991 clause tot he Constitutional Council.
Despite the strained security context of the time, the French Constitutional Council put an end to the
loophole.
Entry into force of the repeal of article 24 of the Intelligence Law.
Repeal of the intelligence loophole on wireless communications, deemed unconstitutional
The Constitutional Council declares article 24 of the Intelligence Law contrary to the Declaration of Human and Civil Rights of 1789. It notes that the “wireless exception” allows the collection of personal data and the interception of communications and that these intelligence measures are not subject “to any substantive or procedural conditions”and limited by “no guarantee".
This “manifestly disproportionate interference with the right to respect for private life and the secrecy of correspondence” is contrary to Article 2 of the Declaration of 1789. That being said, the Council considers that “public authorities should not be deprived of any possibility of monitoring wireless transmissions” and therefore postponed the effect of its decision to more than a year.
QPC transmission to the French Constitutional Council
Based on our briefs the French Council of State concluded there were indeed doubts on the consitutionality of the provision on wireless communications. The Council of State therefore transmitted our question to the Constitutional Council.
Priority preliminary ruling request (QPC) on wireless communications surveillance to the French Council of State
During the intelligence law reform of 2015 the Parliament chose to maintain the “wireless exception” introduced in French law in 1991. At the time this was meant to cover military communications, but the rise of mobile communications and wireless networks made this provision totally obsolete, grossly disproportionate and source of abuse by the police and intelligence services (as in the case of the fadettes of Le Monde, where phone bills of journalists were analysed).
The notion of “wireless communications” might not be clear for everybody, and it is useful to provide a few examples. It might concern, for instance, all information sent:
- Between a mobile phone and its relay antenna (GSM/3G/4G/5G);
- Between a WiFi hotspot and a computer, smartphone or tablet;
- By a laptop using a 3G or 4G dongle;
- Between two Bluetooth devices (wireless microphones, etc);
- Between a cordless phone and its station;
- Between two ham radio practitioners or two walkie-talkies, etc.;
- By users of Satellite, WiMax, WiFi etc.;
- Between an instant pay card and its station;
- By a GPS beacon;
- Between an NFC chip (which you find in credit cards, or various other cards) and the reader.
Cases N° QPC 2016-590, 394922, 394924, 394925, 397844, 397851
These cases were gathering non-profit Internet service providers French Data Network, FDN Federation, Igwan.net and the Quadrature du Net organisation, together with the Spinosi & Sureau law firm.
The QPC is a French Constitutional Law procedure allowing persons involved in a pending case to ask the court they are before to suspend the proceedings and pass on an overarching question the Constitutional Council to assess the constitutionality of laws relating to the case at hand. Here the QPC was made possible as part of the pending case we had started before the French Council of State on the Decrees of the Intelligence Law reform of 2015.
QPC Brief for the Council of State, France's highest administrative court