The decision of the Council is similar to that recently taken by the Court of Justice of the European Union, and contradicts a previous decision of the Council of State.
Le Monde with AFP
The Constitutional Council Censored Friday 25 February A text , reviewed since by the legislator, on the general and undifferentiated conservation of the connection data, believing that this provision carried a “disproportionate infringement of the right to respect for privacy”.
The censored text imposed on Internet access providers (ISPs) or telephony for one year the connection data – send time, duration of a call, IP address … – of their customers, for that they can be requisitioned in the framework of judicial investigations. This provision, judged too wide and attentate to privacy, had been challenged for several years by associations of the rights of Internet users, whose quadrature of the net .
Seized as part of a priority question of constitutionality (QPC), introduced by the Associative Access Provider Franciliens.net, the Constitutional Council ruled that, “taking into account their nature, their diversity and treatment Of which they can be subject, [the login data kept by the operators] provide on these users as well as, if necessary, on third parties, many and precise information, particularly attacks to their privacy. “.
“By authorizing the general and undifferentiated conservation of the connection data, the disputed provisions carry disproportionate infringement of the right to respect for private life,” the Constitutional Council underlined.
Conflict of jurisprudence
The censored text has no more effective since the new anti-terrorism law of 30 July 2021, but the decision of the Constitutional Council could open “a conflict of case law” which must be decided by the Court of Cassation, reacted the Lawyer in the Council of State and the Court of Cassation Patrice Spinosi.
The decision of the Constitutional Council reinforces a judgment of the Court of Justice of the European Union (CJEU) which, in October 2020, had ruled contrary to the law of the Union the general and undifferentiated conservation of the connection data (List of incoming and outgoing calls from a telephone, geolocation, IP addresses, list of websites consulted …) Operated for the needs of intelligence services and judicial investigations.
But, last April, the Council of State validated the obligation to the operators to preserve the connection data of the population, while specifying that it could only be in order to fight against terrorism and organized crime.
The text censored by the Constitutional Council provided that electronic communications operators erase or render anonymous the traffic data recorded on the occasion of the electronic communications of which they transmit, but stipulated at the same time that the operators could be required to keep certain categories of connection data for the purpose of providing the judicial authority.