French Intelligence Laws

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Two intelligence laws (also referred to as "surveillance laws") have been passed in France in 2015:

  • The intelligence law on internal intelligence activities
  • The international intelligence law

Both laws have been integrated to the eighth book of the internal security code (Code de la sécurité intérieure, or CSI). You will find below their provisions, translated by La Quadrature du Net.

Sommaire

Why two laws?[modifier]

The intelligence law on internal intelligence activities, among other legal actions against it, was referred before the French Constitutional Council before its implementation. The Constitutional Council deemed the law constitutional, except for its chapter on the surveillance of "international communications" because the law did not provide detailed safeguards. For this reason, the chapter was struck down and the government had to pass another law for international surveillance with more detailed provisions.

  • The intelligence law on internal intelligence activities was passed on the 24th of July 2015, following the fast-track procedure.
  • The international intelligence law was passed on the 30th of November 2015.

Graphical Overview[modifier]

The intelligence laws, and the related executive orders, have granted intelligence powers to a wide variety of police, customs, tax and military services. The extent of these powers can be visualized in the following chart:

Extrajudicial intelligence powers in France

The intelligence laws as included in the Internal Security Code[modifier]

BOOK VIII: INTELLIGENCE[modifier]

Article L801-1[modifier]

Respect for privacy, in all its components, including privacy of correspondence, protection of personal data and inviolability of the home, is guaranteed by law. Authorities may override it solely in case of public interest necessities provided for by law, within the limits fixed by it and in compliance with the principle of proportionality.

The approval and implementation of intelligence gathering techniques mentioned in Chapters I-III of Title V of this book on the national territory can only be decided if:

1. They stem from a legally competent authority;

2. They stem from a procedure conforming with Title II of the same book;

3. They comply with missions assigned to the services referred to in Article L. 811-2 or services designated by a decree of the Council of State[1], as provided in Article L. 811-4;

4. They are justified by threats, risks and issues related to the fundamental interests of the Nation mentioned in Article L. 811-3;

5. Their interferences on privacy are proportionate to stated purposes.

The National Oversight Commission for Intelligence-Gathering Techniques[2] shall ensure, as provided for in this book, compliance with these principles. The Council of State rules on legal actions brought against decisions relating to the authorisation and implementation of these techniques and those relating to the retention of the collected information.

TITLE I: GENERAL PROVISIONS[modifier]

Article L811-1[modifier]

The public intelligence policy contributes to the strategy for national security and the defense and promotion of the fundamental interests of the Nation. It falls within the exclusive jurisdiction of the State.

Article L811-2[modifier]

The specialised intelligence services are designated by decree of the Council of State. Their missions, within France and abroad, are to search, collect, process and provide the Government with information related to the geopolitical and strategic issues as well as threats and risks that may affect the life of the Nation. They contribute to the knowledge and anticipation of these issues and the prevention and obstruction of such risks and threats.

They act in compliance with the law, under the authority of the Government and in accordance with the guidelines established by the National Intelligence Council.

The implementation on the national territory of Chapter II of Title II and Chapters I to III of Title V of this book is without prejudice to the second paragraph of Article 40 of the Code of Criminal Procedure.

Article L811-3[modifier]

For the sole exercise of their respective missions, the specialised intelligence services may use techniques mentioned in Title V of this book for the collection of information regarding the defense and promotion of the following fundamental interests of the Nation:

1. National independence, territorial integrity and national defense;

2. Major interests in foreign policy, implementation of European and international obligations of France and prevention of all forms of foreign interference;

3. Major economic, industrial and scientific interests of France;

4. Prevention of terrorism;

5. Prevention of: a) Attacks on the republican nature of institutions; b) Actions towards continuation or reconstitution of groups disbanded under Article L. 212-1; c) Collective violence likely to cause serious harm to public peace;

6. Prevention of organised crime and delinquency;

7. Prevention of proliferation of weapons of mass destruction.

Article L811-4[modifier]

A decree of the Council of State, issued after consultation of the National Oversight Commission for Intelligence-Gathering Techniques, shall designate services other than the specialised intelligence services, reporting to the Ministers of Defense and Interior as well as Ministers in charge of the economy, budget or customs, which may be authorised to use techniques covered by title V of this book as provided in the same book. It specifies, for each service, the purposes mentioned in Article L. 811-3 and techniques that can be considered for authorisation.

Article L811-5[modifier]

Measures taken by public authorities to monitor and control wireless communications for the specific defense of national interests are not subject to the provisions of this book, nor to those of sub-section 2 section 3 of chapter I of title III of book I of the code of criminal procedure.

TITLE II: PROCEDURE FOR INTELLIGENCE-GATHERING TECHNIQUES SUBJECT TO APPROVAL[modifier]

Chapter I: Authorisation of implementation[modifier]

Article L821-1[modifier]

Implementation of intelligence-gathering techniques mentioned in Title V of this book on the national territory is subject to prior approval of the Prime Minister, given after consultation with the National Oversight Commission for Intelligence-Gathering Techniques.

These techniques can only be deployed by individually designated and individually authorised agents.

Article L821-2[modifier]

Authorisation referred to in Article L. 821-1 is issued upon written and substantiated request of the Minister of Defence, of the Minister of Interior or of ministers responsible for the economy, budget or customs. Each minister may only delegate the assignment individually to direct employees holding security clearances.

The application shall specify:

1. The technique or techniques to deploy;

2. The service for which it is made;

3. The intended purposes;

4. The reasons for the measures;

5. The duration of the authorisation;

6. The targeted person, place or places or vehicles.

For the purposes of item 6, people of unknown identity may be designated by their identifiers or quality and the premises or vehicles may be identified by reference to persons subject of the request.

When the purpose is the renewal of an authorisation, the request shall provide reasons why renewal is justified by the pursued objective or objectives.

Article L821-3[modifier]

The request is communicated to the president [of the Commission] or, failing that, a member of the National Oversight Commission for Intelligence-Gathering Techniques among those mentioned in 2 and 3 of Article L. 831-1, who gives an opinion to the Prime Minister within twenty-four hours. If the application is examined by the restricted formation or by the plenary formation of the Committee, the Prime Minister is informed immediately and notice is given within seventy-two hours.

Notices referred to in this Article shall be communicated immediately to the Prime Minister. In the absence of notice sent in due time as defined in the same article, it is deemed served.

Article L821-4[modifier]

Authorization to deploy techniques mentioned in Title V of this book is issued by the Prime Minister for a maximum period of four months. The Prime Minister may only delegate the assignment individually to direct-hire employees holding security clearances. Authorisation includes reasons and particulars referred to in 1. to 6. of Article L. 821-2. Any authorisation is renewable under the same conditions as those provided for in this chapter.

When the authorisation is granted after an unfavourable opinion of the National Oversight Commission for Intelligence-Gathering Techniques, he/she[3] indicates the grounds on which such notice was not followed.

Authorisation by the Prime Minister shall be communicated immediately to the Minister responsible for its execution and to the Commission.

The request and authorisation are recorded by the office of the Prime Minister. Records are kept available for the National Oversight Commission for Intelligence-Gathering Techniques.

Article L821-5[modifier]

In cases of absolute urgency and exclusively for the purposes mentioned in 1. and 4. and 5.(a) of Article L. 811-3, the Prime Minister, or one of the delegates mentioned in Article L. 821-4, may exceptionally deliver the authorisation referred to in Article L. 821-4 without noticing the national control Commission technical intelligence beforehand. It shall inform it without delay and by any means necessary.

The Prime Minister sends to the Commission, within a period of twenty four hours from the issuance of the authorisation, all motivating factors mentioned that Article L. 821-4 and those justifying the absolute urgency as defined in this article.

Article L821-6[modifier]

[Provisions declared non-compliant with the Constitution by the Constitutional Council decision No. 2015-713 DC of 23 July 2015]

Article L821-7[modifier]

A member of Parliament, magistrate, lawyer or journalist may not be the target of a request for implementation, on the national territory, of a technique of intelligence collection mentioned in Title V of this book due to the practice of their mandate or profession. When such a request targets such a person or their vehicles, offices or homes, the opinion of the National Oversight Commission for Intelligence-Gathering Techniques shall be discussed in plenary session. Article L. 821-5 is not applicable. [Provisions declared non-compliant with the Constitution by the Constitutional Council decision No. 2015-713 DC of 23 July 2015]

The aformentioned Commission is informed of the modalities of execution of authorisations issued under this section.

Intelligence transcripts collected under this Article are transmitted to the Commission, which oversees the necessity and proportionality of interferences, if any, with the safeguards related to the practice of such professional activities or mandates.

Article L821-8[modifier]

The National Oversight Commission for Intelligence-Gathering Techniques may issue recommendations to the Council of State in the conditions laid down, respectively, in Articles L. 833-6 and L. 833-8.

Chapter II: Collected intelligence[modifier]

Article L822-1[modifier]

Procedures provided for in this chapter may be deployed by order of the Prime Minister under conditions that he defines after consultation with the National Oversight Commission for Intelligence-Gathering Techniques.

The Prime Minister arranges for traceability of the execution of techniques authorised under Chapter I of this Title and defines the terms of the centralisation of the collected intelligence.

For this purpose, a record is kept of each deployment of an intelligence-gathering technique. It mentions the starting and ending dates of the deployment and the nature of the collected intelligence. This record is made available to the Commission, which may access it at any time, in its totality and in a direct manner, regardless of its degree of completion.

Article L822-2[modifier]

I. Intelligence collected through deployment of an intelligence-gathering technique authorised under Chapter I of this title is destroyed after a period of:

1. Thirty days from their collection for communications intercepted in application of Article L. 852-1 and the words collected in application of Article L. 853-1;

2. One hundred and twenty days from their collection for intelligence collected by deployement of the techniques mentioned in Chapter III of Title V of this book, with the exception of information or documents referred to in Article L. 851-1 ;

3. Four years after their collection for information or documents referred to in Article L. 851-1.

In the case of encrypted information, the period runs from the time of decryption. It may not be retained for more than six years after collection.

For the sole purpose of technical analysis and excluding any surveillance of the targeted persons, intelligence gathered that contains elements of cyberattacks or that are encrypted, as well as decrypted intelligence linked to these, may be retained beyond the periods mentioned in the present I.

II.- By derogation to I, intelligence concerning a request that the Council of State has received may not be destroyed. At the expiration of the duration defined under the same I, they are retained for the sole purpose of the proceedings before the Council of State.

Article L822-3[modifier]

Information may not be collected, transcribed and extracted for purposes other than those mentioned in Article L. 811-3. These operations are subject to review by the National Oversight Commission for Intelligence-Gathering Techniques.

Transcripts or extractions must be destroyed as soon as their retention is no longer necessary for the pursuit of these purposes.

Article L822-4[modifier]

Destruction of collected intelligence, transcripts and extractions referred to in Articles L. 822-2 and L. 822-3 is carried out by individually designated and individually authorised agents. They are logged in records made available to the National Oversight Commission for Intelligence-Gathering Techniques.

TITLE III: THE NATIONAL OVERSIGHT COMMISSION FOR INTELLIGENCE-GATHERING TECHNIQUES[modifier]

Chapter I: Composition and organisation[modifier]

Article L831-1[modifier]

The National Oversight Commission for Intelligence-Gathering Techniques is an independent administrative authority.

It consists of nine members:

1. Two deputies and two senators, designated, respectively, for the duration of the term by the National Assembly and for the duration of their mandate by the Senate, to ensure a pluralistic representation of Parliament;

2. Two members of the Council of State, of a rank at least equal to that of a state councilor, appointed by the Vice President of the Council of State;

3. Two magistrates outside the hierarchy of the Court of Cassation, appointed jointly by the first president and by the Attorney General of the Court of Cassation;

4. A person qualified for their knowledge in the field of electronic communications, appointed on the proposal of the President of the Regulatory Authority of Electronic and Postal Communications.

The modalities for the appointment or nomination of members mentioned in 1. to 3. guarantees equal representation of men and women.

The president of the Commission is appointed by a decree of the President of the Republic from among the members referred to in 2. and 3.

The mandate of members, except those mentioned in 1., is for six years. It is not renewable.

The members of the Council of State or Court of Cassation[4] are renewed by half every three years.

The Commission may suspend the mandate of a member or terminate it if it finds, by a majority of three quarters of the other members, that he or she is in a situation of incompatibility, is prevented from exercising their duties or has breached their obligations.

In case of vacancy of a member's seat for any reason whatsoever, a new member is appointed or designated for the remaining duration of the term of office. If this time is less than two years the mandate of the new member is renewable once.

Article L831-2[modifier]

The plenary panel of the National Oversight Commission for Intelligence-Gathering Techniques is composed of all the members referred to in article L. 831-1.

The limited panel of the National Oversight Commission for Intelligence-Gathering Techniques is composed of the members referred to in 2 to 4 of the same Article L. 831-1.

These panels are chaired by the president of the Commission.

Chapter II: Rules of conduct and operation[modifier]

Article L832-1[modifier]

In performing their duties, members of the commission do not receive instructions from any authority.

Article L832-2[modifier]

The president of the commission may not hold any elected office and may not engage in any other professional activity.

Commission membership is incompatible with any involvement, direct or indirect, in the services that may be authorised to implement the techniques mentioned in Title V of this book or in the activity of one of the persons referred to in II Article L. 34-1 of the code of postal and electronic communications as well as 1 and 2 of I of Article 6 of law No. 2004-575 of 21 June 2004 on confidence in the digital economy. Membership is also incompatible with any professional activity or other full-time public office and any elective mandate, except for those of the members mentioned at section 1 of Article L. 831-1.

Article L832-3[modifier]

The National Oversight Commission for Intelligence-Gathering Techniques shall adopt its own rules of internal procedure.

Opinions on the requests referred to in Article L. 821-2 are rendered by the president or by another member mentioned in 2. and 3. of Article L. 831-1. These opinions are made available to all members of the commission.

Any new or serious matter is referred to the partial or plenary panel. These panels can also be constituted if the president of the Commission or the member mentioned in the second paragraph of this article believes that the validity of the request is not certain. The restricted and the plenary formation can validly deliberate only if, respectively, at least three or four members are present. Their decisions are taken by a majority of the members present.

In case of a tied vote, the chairman casts the deciding vote.

The plenary panel will meet at least once a month. It is informed of the opinions given on the applications referred to in Article L. 821-2 at its next meeting.


Article L832-4[modifier]

The Commission has the human and technical resources needed to fulfill its missions and the corresponding funds, under the conditions set by the Finance Act. [Provisions declared non-compliant with the Constitution by the Constitutional Council decision No. 2015-713 DC of 23 July 2015.] The president is the spending authority of the Commission. The law of 10 August 1922 on the organisation of the control of expenditures is not applicable to him. The Commission submits its accounts in the control of the Court of Auditors.

The Secretary General of the Commission shall assist the President. He is appointed by the president of the Commission.

The Commission may employ assigned or seconded public servants or magistrates and, if needed, recruit contract staff to work under its authority.

Article L832-5[modifier]

In their official capacity, members of the Commission have a need-to-know for information or elements of appreciation protected under Article 413-9 of the Criminal Code and relevant to the exercise of their office.

Commission agents must hold a security clearance in order to access the information and documents necessary to accomplish their missions.

Members and agents of the Commission are obligated to maintain the secrecy of information protected by articles 413-10 to 226-13 of the same code for the facts, acts and intelligence they may come to know in their official capacity.

The work of the Commission is classified as a national defence secret.

Chapter III: Missions[modifier]

Article L833-1[modifier]

The National Oversight Commission for Intelligence-Gathering Techniques ensures that intelligence gathering techniques are deployed in the country in accordance with this book.


Article L833-2[modifier]

To accomplish its mission, the Commission:

1. Receives all requests and authorisations referred to in the present book;

2. Has a permanent, comprehensive and direct access to records, logs, collected intelligence, transcripts and extractions mentioned in this book [Provisions declared non-compliant with the Constitution by the Constitutional Council decision No. 2015-713 DC of 23 July 2015], as well as to audits? of for collected intelligence and to the premises where this information is centralised in application of Article L. 822-1;

3. Is informed at any time, at its request, of the modalities of execution of ongoing authorisations;

4. May request from the Prime Minister any elements necessary for the accomplishment of its missions, including when the deployed intelligence-gathering technique has neither been requested nor authorised or does not meed the traceability requirements, except for elements provided by foreign agencies or by international bodies or that may give knowledge to the Commission, directly or indirectly, of the identity of the sources of the specialised intelligence services;

5. Can request from the Prime Minister all or part of the reports of the supervisory authority of the intelligence services as well as reports of the general supervisory authorities of ministries on the services under their jurisdiction, in connection with the missions of the Commission .

Article L833-3[modifier]

Ministers, public authorities and public officials shall take all necessary measures to facilitate the work of the Commission.

A penalty of one year imprisonment and € 15,000 fine is imposed for hindering the activities of the Commission:

1. By refusing to communicate to the Commission the documents and information it has requested in application of Article L. 833-2, or by concealing such documents or information, or by making them disappear;

2. By transmitting transcripts or extractions that are not consistent with the content of the collected information as it was at the time the request was made;

3. By opposing the missions entrusted to its members or officers authorised by virtue of Article L. 832-5.

Article L833-4[modifier]

On its own initiative or when it receives a complaint from anyone wishing to verify that no intelligence gathering technique is irregularly deployed against them, the Commission shall oversee the techniques invoked to verify that they have been or are being implemented in compliance with this book. It shall notify the person making the claim that it has carried out the necessary checks, without confirming or denying their implementation.

Article L833-5[modifier]

When it delivers an opinion on the request for authorisation for the implementation of intelligence-gathering techniques provided for by Chapters I-III of Title V of this book or when it controls their implementation, the Commission verifies that the measure complies with Article L. 801-1.

Article L833-6[modifier]

The Commission may at any time send to the Prime Minister, to the minister responsible for the execution and to the service concerned, a recommendation that the implementation of a technique be suspended and that the collected information be destroyed when it considers that:

1. An authorisation was granted in disregard of this book;

2. A technique was deployed in disregard of this book;

3. The collection, transcription, retrieval, retention or destruction of collected information was performed in disregard of Chapter II of Title II of this book.

Article L833-7[modifier]

The Prime Minister shall without delay inform the Commission of the follow-up given to its recommendations.

Article L833-8[modifier]

Actions may be brought before the Council of State as provided for in 2. of Article L. 841-1 either by the president of the Commission when the Prime Minister does not follow the advice or recommendations of the Commission or when the follow-ups are deemed insufficient, or by at least three members of the Commission.

Article L833-9[modifier]

The Commission shall establish each year a public report taking stock of its activity. Maintaining secrecy of national defence secrets and without revealing procedures or operational methods, the public report of the Commission records the number:

1. Of requests that it has received and opinions it has given;

2. Of complaints brought before it;

3. Of recommendations it has issued to the Prime Minister and of favourable follow-ups given to these recommendations;

4. Of comments issued to the Prime Minister and of opinions given upon request;

5. Of use of emergency procedures defined in Articles L. 821-5 [Provisions declared non-compliant with the Constitution by the Constitutional Council decision No. 2015-713 DC of 23 July 2015];

6. Of appeals it has brought before the Council of State and appeals for which it has submitted observations.

Article L833-10[modifier]

The Commission may issue observations it deems appropriate to the Prime Minister at any time.

These observations are communicated by the Prime Minister to the parliamentary delegation on Intelligence, subject to compliance with the last paragraph of I and the first paragraph of Article IV of the 6h of Ordinance No. 58-1100 of 17 November 1958 on the functioning of the parliamentary assemblies.

Article L833-11[modifier]

The Commission responds to requests for advice from the Prime Minister, the Speaker of the National Assembly, the President of the Senate and the parliamentary delegation on Intelligence.

Consistent with the need to maintain the secrecy of national security information, the Commission may consult with the regulatory authority on electronic communications and postal services[5] or meet its demands.

TITLE IV: LEGAL ACTIONS AGAINST DEPLOYMENT OF INTELLIGENCE TECHNIQUES REQUIRING AUTHORISATION AND FILES RELEVANT TO STATE SECURITY[modifier]

Article L841-1[modifier]

Subject to provisions included in article L. 854-9 of this text, the Council of State is competent, under conditions laid down in chapter III bis of title VII of book VII of the administrative justice code, for requests concerning the deployment of intelligence-gathering techniques specified in title V of this book. Cases may be brought before the Council of State by:

1. Any person wishing to ascertain that no intelligence practice is carried out improperly against them, after prior recourse to the procedure set out in article L. 833-4; 2. The National Oversight Commission for Intelligence-Gathering Techniques, as established by the provisions in article L. 833-8. When a legal proceeding or dispute whose resolution depends upon the examination of the lawfulness of one or more intelligence gathering practices is brought before an administrative court or a judicial authority, it can, on its own initiative or upon request of one of the involved parties, refer to the Council of State for a preliminary ruling. The Council of State shall issue a decision within a month of the referral.

Article L841-2[modifier]

The Council of State is competent, under conditions laid down in chapter III bis of title VII of book VII of the administrative justice code, for requests concerning the implementation of article 41 of the Law n° 78-17 of 6 January 1978 that pertain to information technology, databases and civil liberties, for the processing or elements of processing relevant to State security as laid down by a list set by decree in the Council of State.

TITLE V: TECHNIQUES OF INTELLIGENCE COLLECTION SUBJECT TO APPROVAL[modifier]

Chapter I: Administrative access to connection data[modifier]

Article L851-1[modifier]

In accordance with Chapter I of Title II of this Book, collection may be allowed, from electronic communications operators and the persons mentioned in Article L. 34-1 of the code of postal and electronic communications, as well as persons mentioned in 1 and 2 of I of Article 6 of Law No. 2004-575 of 21 June 2004 on Confidence in the Digital Economy, of information or documents processed or retained by their electronic communications networks or services, including technical data pertaining to the identification of subscription or connection identifiers for electronic communications services, to the enumeration of all subscription or connection identifiers of a designated person, to the location of the terminal equipment used, as well as to communications from a subscriber involving the list of numbers of dialed and received calls.

By derogation from Article L. 821-2, written and legally justified requests pertaining to technical data relative to subscription or connection identifiers for electronic communications services, or to the enumeration of all subscription or connection identifiers of a designated person shall be directly transmitted to the National Oversight Commission for Intelligence-Gathering Techniques by individually designated and individually habilitated agents of the intelligence services mentioned in articles L. 811-2 and L. 811-4. The Commission delivers its opinion in accordance with Article L. 821-3.

A component of the Prime Minister's office shall be tasked with collecting the information or documents from operators and people mentioned in the first paragraph of this article. The National Oversight Commission for Intelligence-Gathering Techniques shall enjoy permanent, full, immediate and direct access to collected information or documents. The enforcement modalities of the present article shall be defined by decree of the Council of State, issued after consultation with the National Data Protection Authority and the National Oversight Commission for Intelligence-Gathering Techniques .

Article L851-2[modifier]

I. In accordance with Chapter I of Part II of this book and for the sole purpose of preventing terrorism, real-time collection may be individually authorised from the networks of operators and persons referred to in Article L. 851-1, of information or documents referred to in the same article L. 851-1 regarding a person previously identified as posing a threat.

II.- By derogation from Article L. 821-4, authorisation shall be issued for a period of two months, renewable under the same conditions of duration.

III.- Article L. 821-5 is not applicable to an authorisation issued under this section.

Article L851-3[modifier]

I.- In accordance with Chapter I of Part II of this book and for the sole purpose of preventing terrorism, automated monitoring may be imposed on the networks of operators and persons referred to in Article L. 851-1, designed, based on parameters specified in the authorisation, to detect connections susceptible to reveal a terrorist threat.

This automated monitoring exclusively uses the information or documents referred to in Article L. 851-1, without collecting data other than that that meets their design parameters and without allowing the identification of persons to whom the information or documents relate.

In accordance with the principle of proportionality, authorisation by the Prime Minister specifies the technical scope of the implementation of this monitoring.

II.- The National Oversight Commission for Intelligence-Gathering Techniques shall issue an opinion on the authorisation request relating to the chosen automated processings and detection parameters. It shall enjoy permanent, comprehensive and direct access to this monitoring as well as to collected information and data. It shall be informed of any modification to this monitoring and parameters and may issue recommendations.

The first authorisation to deploy automated monitoring under I of this Article is issued for a period of two months. The authorisation is renewable under the conditions of duration set forth in Chapter I of Part II of this book. Renewal requests shall include a record of the number of identifiers reported by the automated processing and an analysis of the relevance of these reports.

III.- Conditions laid down in Article L. 871-6 apply to material operations put in place for this implementation by operators and persons referred to in Article L. 851-1.

IV.- When processings mentioned in this article I detect data indicating the existence of a terrorism-related threat, the Prime Minister or one of the persons delegated by him may authorise, after consulting with the National Oversight Commission for Intelligence-Gathering Techniques under the conditions given under chapter I of Part II of this book, identification of the person or persons concerned and collection of related data. Said data shall be exploited within a sixty-day timeframe from collection and shall be deleted after this duration, except in case of serious elements confirming existence of a terrorist threat related to one or several of the concerned persons.

V.-Article L. 821-5 is not applicable to an authorisation issued under this section.

Article L851-4[modifier]

In accordance with Chapter I of Part II of this book, technical data related to the location of terminal equipment used, as referred to in Article L. 851-1, may be gathered directly from the network and transmitted in real time by the operators to the office of the Prime Minister.

Article L851-5[modifier]

In accordance with Chapter I of Part II of this book, the use of a technical device enabling the real-time location of a person, vehicle or object may be allowed.

If deployment of this technique requires entry into a vehicle or into a private space, this measure is carried out according to the procedures defined in Article L. 853-3.

Article L851-6[modifier]

I.-In accordance with Chapter I of Part II of this book, technical connection data permitting identification of a terminal equipment or its user subscription number as weel as data relating to the location of the terminal equipment used may be directly collected by means of a technical apparatus or device mentioned in point 1 of Article 226-3 of the Criminal Code,.

By derogation from Article L. 821-4 of the Code, authorisation is issued for a period of two months, renewable under the same conditions of duration.

II.- The technical apparatus or devices mentioned in I are recorded in a special register kept at the disposal of the National Oversight Commission for Intelligence-Gathering Techniques and may only be deployed byindividually designated and individually habilitated agents.

III.- A component of the Prime Minister's Office centralises the collected intelligence or documents, which are:

1. Retained in accordance with Article L. 822-2, if they fall within the purview to the deployement authorisation;

2. Deleted as soon as it is apparent that they fall outside the purview to the deployment authorisation,, within a delay of ninety days at most.

IV.- The maximum number of technical apparatus or devices mentioned in II of the present article that may be used simultaneously is set by the Prime Minister after consultation with the National Oversight Commission for Intelligence-Gathering Techniques. The decision specifying this quota and its distribution among the ministers mentioned in the first paragraph of Article L. 821-2 is communicated to the Commission.

Article L851-7[modifier]

The present chapter is implemented in compliance with Article 226-15 of the Penal Code.

Chapter II: Security Interceptions[modifier]

Article L852-1[modifier]

I. In accordance with Chapter I of Part II of this book, interception of correspondence sent electronically and likely to reveal information related to the purposes mentioned in Article L. 811-3, may be authorised. When there are serious reasons to believe that one or more persons belonging to the entourage of a person subject to the authorisation may provide information within the framework that motivates the authorisation, said authorisation may also be granted to these persons.

II.- For the sole purposes mentioned in 1. and 4. and 5. of Article L. 811-3 of this Code, the use of a technical apparatus or device mentioned in 1. of article 226-3 of the criminal code may be authorised for a period of forty-eight hours, renewable, to intercept correspondence sent or received by a terminal equipment. Correspondence intercepted by the technical apparatus or device is destroyed once it is apparent that is has no connection with the authorisation as issued, within the period referred to in 1 of I of Article L. 822-2 of the this code.

III.- The authorisation covers collection of information or documents referred to in Article L. 851-1 as required to perform the interception and its exploitation.

IV.- A component of the Prime Minister s office organises the centralisation of the execution of interception mentioned in I. After consulting the National Oversight Commission for Intelligence-Gathering Techniques, the Prime Minister defines the modalities of the centralisation of correspondence intercepted under II.

V.- Transcription and extraction of the intercepted communications to which the National Oversight Commission for Intelligence-Gathering Techniques enjoys a permanent, comprehensive, direct and immediate access, are performed by the Office of the Prime Minister.

VI.- The maximum number of authorisations for interceptions to be carried out simultaneously is set by the Prime Minister, after consulting with the National Oversight Commission for Intelligence-Gathering Techniques. The decision fixing this quota and its distribution among the ministers mentioned in the first paragraph of Article L. 821-2 as well as the number of interception authorisations issued are communicated to the Commission.

Chapter III: Sound recording of certain premises and vehicles and collection of images and computer data[modifier]

Article L853-1[modifier]

I.- In accordance with Chapter I of Part II of this book, use of technical devices to monitor, fixate, transmit and record words spoken in private or confidential settings, or images from a private location, may be authorised when information cannot be collected by any other legally authorised mean.

II.- By derogation from Article L. 821-4, the authorisation is issued for a maximum period of two months, renewable under the same conditions of duration.

III.- Technical devices mentioned in Section I of this Article may only be used by agents in one of the services mentioned in articles L. 811-2 and L. 811-4, the list of which is decided by a decree of the Council of State.

IV.- The service authorised to use the technique mentioned in I of this Article shall report to the National Oversight Commission for Intelligence-Gathering Techniques. The Commission may at any time issue a recommendation that the operation be interrupted and that the collected intelligence be destroyed.

V. If deployment of this technique requires entry into a vehicle or a private location, this measure is carried out according to the procedures defined in Article L. 853-3.

Article L853-2[modifier]

I.- In accordance with Chapter I of Part II of this book, when intelligence cannot be collected by any other legally authorised mean, usage of technical devices may be authorised as to allow:

1. To access computer data stored in a computer system, to collect, retain and transmit it;

2. To access computer data, to collect, retain and transmit it, as it is displayed onscreen for the user of an automated data processing system, as it is entered by keystrokes or as received and transmitted by audiovisual peripheral devices.

II.- By derogation from Article L. 821-4, authorisation to deploy techniques mentioned in 1 of I of the present Article is issued for a maximum period of thirty days and the one mentioned in paragraph 2 of the same I for a maximum period of two months. Authorisation is renewable under the same conditions of duration.

III.- Technical devices mentioned in Section I of this Article may only be used by agents belonging to one of the services mentioned in articles L. 811-2 and L. 811-4, the list of which is decided by decree of the Council of State.

IV.- The service authorised to use the technique mentioned in I reports to the National Oversight Commission for Intelligence-Gathering Techniques about its deployment. The Commission may at any time issue a recommendation that the operation be interrupted and that the collected intelligence be deleted.

V.- If deployment of this technique requires entry into a vehicle or a private location, the measure is carried out according to the procedures defined in Article L. 853-3.

Article L853-3[modifier]

I. In accordance with Chapter I of Part II of this book, when intelligence cannot be collected by any other legally authorised mean, breaking into a vehicle or into a private location for the sole purpose of establishing, using or removing technical devices mentioned in Articles L. 851-5, L. 853-1 and L. 853-2 may be authorised. If a private dwelling place is concerned, or for the use of the technique mentioned in 1. of I of Article L. 853-2, authorisation may be given only upon formal opinion of the National Oversight Commission for Intelligence-Gathering Techniques, sitting either in restricted formation or in plenary session.

Entry into a vehicle or a private location may only be performed by individually designated and individually habilitated agents belonging to one of the services mentioned in articles L. 811-2 and L. 811-4, the list of which is decided by decree of the Council of State.

II.- In applying the penultimate paragraph of Article L. 821-2, the application shall state, where known, any indication identifying the place, its use, its owner or any other right-holder, as well as the detailed nature of the envisionned system.

III.- By derogation from Article L. 821-4, authorisation, which shall be specially motivated, is issued for a maximum period of thirty days and is renewable under the same conditions of duration that the initial authorisation. It only applies to the acts of installing, using, maintening or removing technical devices.

When break-in as mentioned in I of this article and performed in residential private premises is authorised after adverse opinion by the National Oversight Commission for Intelligence-Gathering Techniques , the case is immediately brought before the Council of State by the President of the Committee or, failing that, by one of the members of the commission among those mentioned under 2. and 3. of Article L. 831-1 of the present code. The specially constituted panel mentioned in Article L. 773-2 of the Code of Administrative Justice, the President of the partial panel mentioned in Article L. 773-2 or the member delegated by him, shall act within twenty-four hours of such a referral. The Prime Minister's authorisation decision may not be executed before the Council of State has ruled, unless it was issued under 4. of Article L. 811-3 of the Code and if the Prime Minister ordered its immediate implementation.

IV.- The service authorised to perform a break-in into a vehicle or in a private location shall report to the Committee of its implementation. The Commission may at any time issue a recommendation that this operation be suspended and that the collected intelligence be destroyed.

Chapter IV: Surveillance techniques for international electronic communications[modifier]

Article L854-1[modifier]

Under the conditions set forth in the present chapter, surveillance of communications emitted from or received abroad may be authorised, solely for the purposes of defense and promotion of the fundamental interests of the Nation as mentioned in article L. 811-3. This surveillance is exclusively covered by this chapter, whether it relates to the content of the communication or to its metadata.

Measures taken in this respect cannot be designed for individual monitoring targeting communications of people using subscription numbers or identifiers traceable to the national territory, unless these people are communicating from abroad, and were either the targets of an authorisation allowing security interception issued pursuant to Article L. 852-1 on the date on which they left the country or are identified as posing a threat to the fundamental interests of the nation mentioned in Article L. 811-3.

Subject to the specific provisions of the third paragraph of this article, when it is apparent that the intercepted electronic communications are being exchanged between people or equipment using subscription numbers or identifiers traceable to national territory, including when such communications transit through through equipment non-traceable to national territory, they shall be immediately deleted.

Article L854-2[modifier]

I. -The Prime Minister shall designate, by a reasoned decision, the electronic communications networks over which interception of communications emitted from or received abroad will be permitted, within the limits laid down in Article L. 854-1.

II. -Upon reasoned request by ministers or their deputies mentioned in the first paragraph of Article L. 821-2, the Prime Minister or one of the delegates mentioned in Article L. 821-4 may authorise the non-individualised exploitation of intercepted metadata. The authorisation establishes:

  1. The pursued objective(s) among those mentioned in Article L. 811-3;
  2. The reason(s) for action;
  3. The service(s) referred to in Article L. 811-2 in charge of the exploitation of connection data;
  4. The type of automated processes that may be deployed, indicating their objective. The authorisation is issued for a maximum period of one year, renewable under the same conditions as laid down in the present paragraph/section (II).


III. Upon reasoned request by ministers or their deputies mentioned in the first paragraph of Article L. 821-2, the Prime Minister or one of their delegates may also issue authorisation to exploit intercepted communications or exploit metadata alone. The authorisation establishes:

  1. The pursued objective(s) among those mentioned in Article L. 811-3;
  2. The reason(s) for action;
  3. The geographical areas or concerned organisations, groups or individuals;
  4. The service(s) mentioned in Article L. 811-2 in charge of this operation.
  5. The authorisation is issued for a maximum period of four months, renewable under the same conditions as laid down in the present paragraph/section (III).
Article L854-3[modifier]

Persons holding an office or praticing a profession in France as mentioned in Article L. 821-7 may not be subject to individual monitoring of their communications due to their exercising their mandate or profession.

Article L854-4[modifier]

Interception and exploitation of communications as defined by the present chapter shall be subject to traceability mechanisms established by the Prime Minister after consultation with the National Oversight Commission for Intelligence-Gathering Techniques. The Prime Minister shall establish the terms of the centralisation of the collected information.


Article L854-5[modifier]

Subject to the specific provisions of Article L. 854-8, intelligence collected under this chapter shall be deleted after a period of: 1. Twelve months after the first exploitation for correspondence, within a period of four years following their collection; 2. Six years following their collection for metadata. As for encrypted information, the allowed duration for exploitation starts from its decryption. It may not be retained for over eight years after collection.

To the extent strictly necessary for the needs of technical analysis, and excluding use for the surveillance of the concerned individuals, information collected under the present chapter that contains elements of cyberattack or that is encrypted, including decrypted associated information, may be retained beyond the durations mentioned in this article.

Notwithstanding the first five paragraphs, intelligence pertaining to a request that the Council of State has received may not be destroyed. Upon expiration of the time periods set forth in the present article, they are retained for the sole purposes of proceedings before the Council of State.


Article L854-6[modifier]

Subject to the specific provisions of Article L. 854-8, the information collected under the present chapter is utilized by the service or services referred to in Article L. 811-2 designated by the authorisation.

Intelligence may not be collected, transcripted or extracted for purposes other than those mentioned in Article L. 811-3.

Transcripts or extractions must be destroyed once their retention is no longer essential to the pursuit of the objectives mentioned in the same Article L. 811-3.

Destruction of collected information, transcripts and extractions is performed by individually designated and authorized agents and is recorded.


Article L854-7[modifier]

The conditions laid down in Articles L. 871-6 and L. 871-7 apply to material operations performed by electronic communications operators for the deployment of the measures provided for in Section I of Article L. 854-2.

Article L854-8[modifier]

When the intercepted correspondence refers to subscriber numbers, or to technical identifiers that are traceable to the national territory, they are exploited in accordance with the IV and V of Article L. 852-1 and retained and deleted in accordance with Articles L. 822-2 to L. 822-4, subject to the oversight of the National Oversight Commission for Intelligence-Gathering Techniques. The retention period for correspondence starts from its first exploitation, but may not exceed six months from its collection. Metadata associated with such correspondence is retained and deleted in accordance with Articles L. 822-2 similar to L. 822-4.


Article L854-9[modifier]

The National Oversight Commission for Intelligence-Gathering Techniques shall be informed of all decisions and authorisations referred to in Article L. 854-2. It shall enjoy permanent, comprehensive and direct access to traceability instruments referred to in Article L. 854-4, the collected intelligence, to transcripts and performed extractions as well as to records referred to in Article L. 854-6 . Upon request, it may review the technical devices necessary for the execution of the decisions and authorisations. If surveillance of persons referred in the third paragraph of Article L. 854-1 has not already been the object of a specific authorisation, their identity is promptly communicated to the Commission.

The Commission may request all elements necessary to the accomplishment of its missions from the Prime Minister.

Article L. 833-3 is applicable to checks carried out by the Commission under this section.

On its own initiative or by request of any person wishing to verify that no surveillance measure is irregularly being performed against them, the Commission shall ensure that the measures implemented under this chapter meet the conditions that it specifies as well as those defined by the regulations made thereunder and the decisions and authorisations of the Prime Minister or his delegates. It shall notify the claimant that it has carried out the necessary checks, without confirming nor denying the deployment of surveillance measures.

When it finds a violation of the present chapter, the Commission issues a recommendation to the Prime Minister to cease the violation, and if necessary to delete the collected intelligence. If the Prime Minister does not follow the recommendation or if the results are deemed insufficient, the matter may be brought before the Council of State, ruling in accordance with Chapter III of Title VII bis of Book VII of the Code of Administrative Justice, by the President or by at least three members of the Commission.

The Commission may submit at any time to the Prime Minister the recommendations and observations it considers appropriate to perform its oversight function with regard to the application of the present chapter.

TITLE VI: AGENTS OF SPECIALISED INTELLIGENCE SERVICES[modifier]

Chapter I: Protection of national defence secrets and anonymity of agents[modifier]

Article L861-1[modifier]

Regulatory activity and individual actions regarding the organisation, management and operation of the services mentioned in Article L. 811-2, and services designated by decree of the Council of State envisaged in Article L. 811-4 as well as situation of their agents, are performed under conditions that guarantee the preservation of the anonymity of the agents.

When, under the first paragraph of this Article, an act may not be published, its coming into force is conditioned upon its recording in a special register, exempt from any publication or broadcast and held by the Prime Minister. Only public authorities and public officials with an established need-to-know and, under conditions and with the reservations provided for in the last paragraph, administrative and judicial courts may consult an act included in this register.

By derogation from Article 4 of Law n° 2000-321 of 12 April 2000 on the rights of citizens in their relations with governments, decisions and other acts of administrative authorities within the services mentioned in the first paragraph of the present article may only contain, in addition to the signature, the ID number of the author, attributed with the delegation of signature authority, and which replaces mention of their name, surname and role. The number of delegations of signature authority for each service is set by order of the competent minister.

When, in the context of a proceeding before an administrative or judicial jurisdiction, resolution of the dispute depends on a question relating to an unpublished act under this article or object of a numbered signature, it is communicated, upon request, to the court or to the magistrate that it has delegated, and shall not be made available to the parties to the dispute. If the act is protected as a national defence secret, the court may request it being declassified and communicated as defined in Article L. 2312-4 of the Defence code.

Article L861-2[modifier]

In the course of a mission regarding defence and national security, agents of specialised intelligence services mentioned in Article L. 811-2 may, under the authority of the agent overseeing or coordinating the mission, use of a assumed identity or an assumed role.

In this case, agents mentioned in the first paragraph are not criminally responsible for such use, nor are the persons required to establish or permit usage of the assumed identity or assumed role. Sections 50 to 52 of the Civil Code do not apply to these people.

An order of the Prime Minister specifies, among the services designated by a decree of the Council of State envisaged in Article L. 811-4 of this Code, those whose agents can also make use of an assumed identity or assumed role.

Article L861-3[modifier]

I.- Any agent of a service mentioned in Article L. 811-2 or a service designated by a decree of the Council of State envisaged in Article L. 811-4 who has knowledge, in their official capacity, of actions that could constitute a clear violation of this book may bring these facts to the sole attention of the National Oversight Commission for Intelligence-Gathering Techniques, which may then bring the case before the Council of State in accordance with Article L. 833-8 and inform the Prime Minister.

When the Commission finds that the noticed illegality could constitute an infraction, it brings the case before the Chief Prosecutor while protecting national defence secrets and communicates all known elements to the Consultative commission for national defence secrets so that the latter can advise the Prime Minister on possible declassification of part or of the entirety of these elements so that they can be communicated to the prosecutor.


II.- No agent may be sanctioned or subjected to discrimination, directly or indirectly, particularly in terms of remuneration, recruitment, tenure, rating, discipline, treatment, training, reclassification, assignment, qualification, classification, professional promotion, transfer, interruption or renewal of contract, for bringing in good faith, facts mentioned in I before the National Oversight Commission for Intelligence-Gathering Techniques. Any act contrary to this paragraph shall be null and void.

In case of dispute on the application of the first paragraph of the present II, it is for the respondent to prove that their decision is justified by objective elements unrelated to the declaration or the testimony of the agent in question.

Any agent that recounts or testifies of facts mentioned in I, in bad faith or with malicious intent or with at least partial knowledge of the inaccuracy of the facts, is liable to the penalties provided in the first paragraph of Article 226-10 the penal code.

Chapter II: Legal protection of agents[modifier]

Article L862-1[modifier]

When acts committed outside the national territory, for purposes strictly necessary for the fulfillment of a mission ordered by legitimate authorities, by an agent of the services mentioned in Article L. 811-2, are brought before the Chief Prosecutor with territorial jurisdiction and appear liable to constitute penal infractions, they shall inform the Minister responsible for the service of the staff member in question as to obtain their opinion prior to any criminal prosecution. Except in cases of emergency, the opinion is given within one month. The opinion shall be requested by any means mentioned in the case file.

The opinion is included in the record of the proceedings, under pain of nullity, unless it was not made within the specified period or in a case of emergency.

Article L862-2[modifier]

Agents of specialised intelligence services are criminally responsible for their actions in accordance with Title II of Book I of the Penal Code.

Chapter III: Information of intelligence services[modifier]

Article L863-1[modifier]

In the performance of their missions as defined in Title I of the present book, individually designated and individually authorized agents of the services referred to in Article L. 811-2 or services designated by decree of the Council of State envisaged in article L. 811-4 may perform the following actions without being criminally responsible:

1. Having electronic exchanges, in accordance with Article L. 861-2, with people likely to interfere with the fundamental interests of the nation mentioned in Article L. 811- 3;

2. Extracting, acquiring or retaining, by these means, data on individuals mentioned in point 1 of this Article;

3. Extracting, transmiting in response to a formal request, acquiring or retaining content directly encouraging or glorifying acts of terrorism.

These acts may not constitute an incentive to commit infractions, under penalty of one year imprisonment and a € 30,000 fine.

Article L863-2[modifier]

Specialised intelligence services mentioned in Article L. 811-2 and the services designated by a decree of the Council of State as envisaged in Article L. 811-4 may exchange all information relevant to the accomplishment of their missions as defined in title I of this book.

Administrative authorities mentioned in Article 1 of Ordinance No. 2005-1516 of 8 December 2005 on electronic exchanges between users and administrative authorities and between administrative authorities may transmit to the services mentioned in the first paragraph of the present Article, on their own initiative or at the request of the latter, information useful for carrying out the tasks of the latter.

The terms and conditions of application of this Article shall be determined by a decree of the Council of State.

TITLE VII: OBLIGATIONS OF OPERATORS AND SERVICE PROVIDERS[modifier]

Article L871-1[modifier]

Natural or legal persons providing cryptographic services to ensure privacy are required to submit within seventy-two hours to agents authorised in accordance with Article L. 821-4, upon their request, the conventions allowing the decryption of data processed through the services they provided. Authorised agents may request the aforementioned service providers to implement these conventions themselves within seventy-two hours, unless they demonstrate that they are not able to meet these requisitions.

A decree of the Council of State specifies procedures by which this obligation is implemented and the conditions under which financial support for this implementation is provided by the State.

Article L871-2[modifier]

The courts that have jurisdiction to order interception under the Code of Criminal Procedure as well as the Prime Minister or, as far as implementation of the measures provided for in Article L. 811-5 is concerned, the Minister of Defence or Minister of the Interior may require, from natural or legal persons operating electronic communications networks or providers of electronic communications services, information or documents they need, each as far as they are concerned, for the completion and exploitation of interceptions authorised by law.

The provision of information or documents referred to in the previous paragraph does not constitute an abuse of their purpose in the framework of Article 226-21 of the Penal Code.

Natural or legal persons mentioned in the first paragraph of this article are required to respond to requests at their earliest convenience.

Article L871-3[modifier]

Within the framework of attributions conferred upon it by Book II of the Code of postal and electronic communications, the minister responsible for electronic communications notably ensures that the public operator, the other public network operators of electronic communications and other authorised electronic communications service providers take measures necessary to ensure the implementation, while protecting national defence secrets, of provisions of this book and section 3 of chapter I of title III of book I of the code of criminal procedure on interceptions of correspondence by means of telecommunication ordered by the judicial authority.

Article L871-4[modifier]

Electronic communications operators mentioned in article L. 34-1 of the code of postal and electronic communications as well as the persons mentioned in 1 and 2 of I of article 6 of Law No. 2004-575 of June 21 2004 on confidence in the digital economy are required to allow, for the purpose of control, members and agents of the National Oversight Commission for Intelligence-Gathering Techniques , appointed for this purpose by the Chairman of the Commission, to enter in the premises of these operators or persons in which the techniques of intelligence gathering authorised under title V of this book are deployed. They communicate in the same conditions, any information requested by the Commission relating to these operations.

Article L871-5[modifier]

The essential requirements in 12 of Article L. 32 of the Code of Postal and Electronic Communications and the secrecy of correspondence mentioned in article L. 32-3 of the Code may be invoked neither before competent courts to grant interceptions under article 100 of the code of criminal procedure, nor before the Minister responsible for electronic communications in the exercise of the powers vested in them by the present book.

Article L871-6[modifier]

Material operations required for the deployement of intelligence gathering techniques mentioned in Articles L. 851-1 to L. 851-4 and L. 852-1 in the premises and facilities of services or agencies placed under the authority or the supervision of the Minister responsible for electronic communications or network operators or telecommunications service providers may only be carried out on the orders of Prime Minister or by order of the person specially delegated by him, by agents qualified for these services, organisations, operators or providers in their respective facilities.

Article L871-7[modifier]

Identifiable and specific additional costs possibly incurred by operators and persons referred to in Article L. 851-1 consecutive to deployment of intelligence-gathering techniques mentioned in Articles L. 851-1, L. 851-2 to L. 851-4 and L. 852-1 shall yield financial compensation from the State.

TITLE VIII: CRIMINAL PENALTIES[modifier]

Article L881-1[modifier]

A person involved in the deployment of an intelligence-gathering technique authorized by law who reveals the existence of the deployment of the technique, is subject to criminal penalties as set forth in Articles 226 -13, 226-14 and 226-31 of the Penal code.

Article L881-2[modifier]

Failure to comply, under the conditions in the first paragraph of Article L. 871-1 and in Article L. 871-4, with demands of authorized officials is punishable by two-year imprisonment and a 150 000-euro fine.

A person operating an electronic communications network or providing electronic communications services who refuses to transmit information or documents or transmits erroneous information in violation of Title V of this book and the first paragraph of Article L. 871-2, is punishable by the same penalties.

To go further[modifier]

Références[modifier]

  1. Conseil d'Etat
  2. Commission nationale de contrôle des techniques de renseignement, CNCTR
  3. The Prime Minister
  4. The Cour de cassation is the highest jurisdiction of the French judicial system.
  5. Autorité de régulation des communications électroniques et des postes, ARCEP