On February 24, 2014, the French Parliament adopted a new law regulating the real-time geolocation of individuals for law enforcement purposes (the “Law”). This Law was adopted in response to two decisions of the Court of Cassation of October 22nd, 2013, which ruled that the use of real-time geolocation devices in the context of judicial proceedings constitutes an invasion of privacy that must be authorized by a judge on the grounds of an existing law. A similar ruling was handed by the European Court of Human Rights on September 2nd, 2010 (ECRH, Uzun v. Germany).
Essentially, this Law authorizes law enforcement authorities to use technical means to locate an individual in real-time, on the entire French territory, without that individual’s knowledge, or to locate a vehicle or any other object, without the owner or possessor’s consent. These methods may be applied in the course of a preliminary inquiry or a criminal investigation into:
- felonies and misdemeanours against individuals that are punishable by at least 3 years’ imprisonment, or aiding/concealing a criminal, or a convict’s escape;
- crimes and felonies (other than those mentioned above) that are punishable by at least 5 years’ imprisonment;
- the cause of death or disappearance;
- finding an individual on the run against whom a search warrant has been issued; and
- investigating and establishing a customs felony punishable by at least 5 years’ imprisonment.
The use of real-time geolocation may only be conducted by a police officer for a maximum period of 15 days (in the case of a preliminary inquiry) or 4 months (in the case of an investigation) and must be authorized respectively by the public prosecutor conducting the inquiry or the judge authorizing the investigation.
However, there are serious concerns within the legal profession that this Law constitutes an invasion of privacy. According to the European Court of Human Rights, a public prosecutor is not an independent judicial authority, and therefore, the use of real-time geolocation in the context of a preliminary inquiry would constitute a violation of the individual’s civil liberties and freedoms. The use of real-time geolocation is considered to be a serious breach of privacy, which as a result, should only be used in exceptional circumstances for serious crimes and felonies, and should remain at all times within the control and authority of a judge. As a consequence, the French Minister of Justice, Christiane Taubira, has asked the Presidents of the French National Assembly and Senate to bring this Law before the Constitutional Council before it comes into force to decide whether it respects the Constitution.
The French Data Protection Authority (“CNIL”) stated in a press release that real-time geolocation of individuals is comparable to the interception of electronic communications, and therefore, identical safeguards to those that apply to the interception of electronic communications (in particular, the conditions for intercepting electronic communications in the course of criminal proceedings) should equally apply to geolocation data. The CNIL also considers that the installation of a geolocation device in an individual’s home, without that individual’s knowledge, should be supervised and authorized by a judge at all times, regardless of whether that operation takes place during the day or at night.
In a previous press release, the CNIL raised similar concerns over the adoption of the Law of December 18th, 2013, on military programming, which authorizes government authorities to request real-time access to any information or documents (including location data) stored by telecoms and data hosting providers on electronic communications networks for purposes of national security.