The transmission of information to the intelligence services

On 19 May 2021, the French ‘Conseil d’État’ referred to the Constitutional Council a priority question of constitutionality raised by La Quadrature du Net. The latter challenged the conformity with the Constitution of Article L. 863-2 of the Internal Security Code (in French, ‘Code de la sécurité intérieure’, or CSI), in its wording resulting from Law No. 2016-987 of 21 July 2016 extending the application of Law No. 55-385 of 3 April 1955 relating to the state of emergency and providing measures to strengthen the fight against terrorism.

The law at stake

Article L. 863-2 of the Internal Security Code comprises three paragraphs.

The first stipulates that the specialised intelligence services of the “first circle” (Art. 811-2 of the CSI[1]) and the services of the second circle (Art. 811-4 of the CSI[2]) may share all information useful for the accomplishment of their missions as defined by the Internal Security Code.

The second paragraph concerns the administrative authorities[3] mentioned in Article 1 of Order No. 2005-1516 of 8 December 2005 on electronic exchanges between users and administrative authorities and between administrative authorities. It allows the latter to transmit to the services mentioned in the first paragraph, on their own initiative or at the request of the latter, information useful for the performance of their missions.

The third paragraph leaves it to a decree of the Conseil d’État to determine the terms and conditions of application.

The claimant association accused the legislator of having disregarded the scope of its competence and thus affected the right to privacy, the protection of personal data, the secrecy of correspondence, and freedom of expression. In particular, it criticised the provisions of the article concerned for failing to define the information that could be shared, the categories of persons who could have access to it, the purposes for which it could be shared, and its legal regime.

The decision of the Constitutional Council’s members

The intelligence services contribute to the defence of the fundamental interests of the nation

The Constitutional Council declared paragraph 1, which provides for exchanges between intelligence services, to be in conformity with the Constitution, but censures paragraph 2, which authorises exchanges with the intelligence services.

The specialised intelligence services of the “first circle” have the task of researching, collecting, exploiting, and making available to the Government intelligence relating to geopolitical and strategic issues as well as to threats and risks likely to affect the life of the nation. They implement techniques for the collection of intelligence relating to the defence and promotion of the fundamental interests of the nation. The services of the “second circle” may also use some of these techniques for their own purposes. Whether they belong to one or the other category, the services called upon to share information among themselves are all services contributing to the defence of the fundamental interests of the nation.

Information sharing between services is compliant with constitutional requirements

The legislator has organised and secured the sharing of information between intelligence services to increase their operational capacity. The provisions in question implement the constitutional requirements inherent in safeguarding the fundamental interests of the nation.

With regard to information, an intelligence service possessing such information may only share it if it is necessary for the accomplishment of the missions of the receiving service. Information shared in this way is subject to compliance with the rules governing the processing of personal data by intelligence services and, in the case of data collected by means of intelligence techniques, with the rules set out in Book VIII of the Internal Security Code. On the other hand, the contested provisions do not prevent the competent authorities from exercising control over the shared information.

By adopting the contested provisions, the legislator intended to improve the information provided to the intelligence services. In so doing, these provisions implement the constitutional requirements inherent in safeguarding the fundamental interests of the nation.

The communication of information to intelligence services is not regulated by the legislator

The transmission of information may take place solely on the initiative of administrative authorities, whose tasks may be unrelated to those of the intelligence services. The information communicated to the intelligence services is all “useful information” for the accomplishment of their missions, without the legislator having specified the nature of the information concerned. The communication of information thus authorised may concern any category of personal data, including “sensitive” information relating to the health, political opinions, and religious or philosophical beliefs of individuals. The legislator has not provided any guarantees for such transmissions of information. The second paragraph of Article L. 863-2 therefore fails to respect the right to privacy.

The repeal of these provisions is postponed until 31 December 2021. Measures taken before the publication of this decision cannot be challenged on the basis of this unconstitutionality.