Monitor, but how far? The senators of the law commission started, this Wednesday, the examination of the bill of orientation and programming of justice. Project whose article 3 has already caused a lot of ink to flow. The text indeed provides extension of special techniques investigation to allow the remote activation of connected devices for the purposes of geolocation and recording of sounds and images”.
This measure is aimed at crimes or misdemeanors punishable by at least five years’ imprisonment. When the necessities of the investigation so require, a magistrate – the investigating judge or the judge of freedoms and detention – can thus decide “the remote activation of an electronic device” (telephone, computer, etc.) , in order to locate a suspect “in real time”, without his consent. The device will also allow investigation services to listen and capture images for crimes relating to organized crime and terrorism.
“A request” from the investigation services
“This is a request that has been coming out for several years from the investigative services specializing in the search for this type of offence”, explains the Chancellery. The idea is to “limit the very significant risks that investigators take when they are responsible for going to put microphones in a vehicle or in the home of a suspect”.
In his opinion on the bill, the Council of State also considers that “this procedure has lost its effectiveness in the face of offenders who have learned to protect themselves against it and can present serious risks for investigators”. The institution emphasizes that the use of the technique envisaged “is today a condition for maintaining the effectiveness of special investigation techniques in the presence of certain particularly formidable forms of criminality and delinquency in organized gangs”.
But the highest administrative court also recognizes that this method “brings a significant violation of the right to respect for private life since it allows recording, in any place where the connected device may be, including places residence, words and images concerning both the persons targeted by the investigations and third parties”. The Council of State therefore considers it necessary to “reinforce the guarantees provided for by the bill”.
“Serious breach of privacy”
“It is a device that will be supervised”, we are assured on the side of Place Vendôme. The decision to remotely activate the device of a person in question “will be systematically taken by a judge” and will be “motivated in law and in fact”. “There are protected places, adds the entourage of the Keeper of the Seals. These are press companies, law firms, the homes of magistrates and parliamentarians. »
The council of the Paris Bar Association, however, expressed reservations in a press release published on May 17. “This new possibility (…) constitutes a particularly serious violation of respect for private life which cannot be justified by the protection of public order, he insists. In addition, the project does not prohibit, through their collection, listening to conversations in his office, between the lawyer and his client, even if their transcription is prohibited. This is an inadmissible breach and contrary to professional secrecy and the rights of defence. »
Contacted by 20 minutes, Me Vincent Nioré, the vice-president of Paris, takes the example of a lawyer who would have an appointment with his client “whose cell phone is activated”. “We are putting in place a system which will necessarily aim, in practice, to kill the confidential relationship between a lawyer and his client. In other words, there is a risk that the confidences of a client to his lawyer will be overheard and exploited even if they are not recorded.
Procedures “generalized in the law afterwards”
“We cannot anticipate the movements of a person, we answer to the Ministry of Justice. It is only when they transcribe the wiretaps that the investigators will be able to realize that it is a protected conversation. [parce que tenue dans un lieu prévu dans la loi]. They are then absolutely prohibited from transcribing the words heard. It must not appear in the procedure, otherwise it may be canceled. »
The text will be discussed in first reading in the Senate from June 6. Asked by Public Senate, the vice-president of the law commission, Cécile Cukierman, believes that this technique “can be very intrusive to privacy, and it is not necessarily being naive about the new processes of criminal investigations to say so”. “Today, a mobile phone is a mini-life, there is almost more data than in a home. Certainly, technology and criminal organizations, like the terrorist threat, evolve. But we are still on an intrusion into private life ”, underlines the elected communist of the Loire, who fears a “generalization” of this type of device. “We know today – the law is like this – that we can start by testing so-called emergency procedures, which then tend to become generalized in the law. »