The Council of State justified Wednesday the continuation of the conservation of the data of connection of the population by the telephone operators for the investigations relating to organized crime and terrorism, because of "the existing threat to national security".

The highest administrative court, seized by several associations reproaching the government for not complying with European case law, however ruled out the possibility for investigators to use it for everyday delinquency.

A threat that will have to be reassessed "regularly"

The French government urged the Council of State to oppose recent judgments of the Court of Justice of the European Union (CJEU) which restrict the retention of connection data.

He argued that “national security remains the sole responsibility of each member state”.

But the court considers that "European law does not compromise the requirements of the French Constitution" and, consequently, considers "illegal the retention of data for needs other than those of national security", thus excluding the fight against delinquency. Daily.

The government will be forced to "regularly reassess the threat to the territory to justify the general retention of data" and to subordinate "the exploitation by the intelligence services to the authorization of an independent authority".

It will also have to repeal certain decrees and comply with European law, depending on the jurisdiction.

Investigators, magistrates and intelligence services have been alarmed for several years by the development of European case law, which threatens to deprive them of the use of "fadettes" (communications records) which they use in "four judicial inquiries into five ”, ranging from domestic violence or theft to organized crime and terrorism.

Metadata retention 

In France, telephone companies must keep metadata of internet and telephone connections for one year, in order to be able to make them available to investigative services at the request of a magistrate or, in matters of intelligence, with the authorization of the Prime Minister. .

These data relate to the location, date, duration and identity of a call or a message, but not to the content of the exchanges.

In judgments of October 6, 2020, confirming the so-called “Télé2” judgment of 2016, the Court of Justice of the European Union (CJEU) only allowed strict exceptions to the ban on imposing data retention, especially in the event of a threat to national security.

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