French Official Recommends Increased Supervision Over Government Data-Gathering

Currently, the CNCIS is consulted by the Prime Minister’s office before the implementation of national security wiretaps.  According to Mr. Delarue, this system works well for wiretaps.  But the collection of metadata falls largely outside this procedure.  According to Delarue, a major overhaul of the 1991 law on national security wiretaps is needed to catch up with modern intelligence gathering techniques and to better reflect the case law of the European Court of Human Rights.  According to Delarue, justifications for government invasion of privacy need to be narrowly defined by law.  Broad justifications such as “fundamental interests of the nation” are too vague to withstand scrutiny under European constitutional principles.

Mr. Delarue recommended that a single independent authority be created to oversee intelligence gathering operations in France.  He also said that a provision of the 1991 law permitting broad untargeted surveillance of radio transmissions be removed, because it is no longer relevant.

Delarue’s recommendations match in many respects those of the French Conseil d’Etat, which issued a report in September 2014 on digital technology and fundamental rights.  The Conseil d’Etat’s report underlined the shortcomings of US data collection practices but was quick to add that France’s legal framework also needs attention.  Like Delarue, the Conseil d’Etat recommended the creation of an independent authority to supervise data collection practices by intelligence agencies.

The testimony of Mr. Delarue and the recent Conseil d’Etat report confirm information contained in Hogan Lovells’ white paper on government access to data in the cloud, as well as a separate Hogan Lovells article on French law appearing in the Oxford journal International Data Privacy Law.

In the Spring of 2015, the French government will propose a new law on digital rights.  However, the upcoming law will probably not include provisions on government surveillance.  In the past, the French government has preferred to deal with national security issues in separate military and security laws.

Hogan Lovells partner Winston Maxwell is a member of the Digital Rights Commission of the French National Assembly.

Authored by Winston Maxwell