PROVISION OF REAL-TIME INTERCEPTION ASSISTANCE

FRENCH CRIMINAL PROCEDURE CODE

The French Criminal procedure code (hereinafter the “CPP”) provides that, for the investigation of felonies and misdemeanours, if the penalty incurred is at least two years’ imprisonment, the investigating judge (“juge d’instruction”) may authorise the implementation of the interception, recording and transcription of telecommunication correspondence where necessary to conduct the investigation. According to article 100 of the CPP, the judge’s decision must be in writing and issued for maximum period of 4 months (renewable once under the same conditions of form and duration).

Article 706-95 of the CPP provides that, as part of investigations relating to organised crime and delinquency, public prosecutors may request from the judge in charge of liberties and custody (the “juge des libertés et de la detention”) an authorisation to implement the interception, recording or transcription of correspondence by telecommunications in accordance with the provisions of Articles 100 ff. of the CPP as mentioned above. The interception may only be ordered for a maximum period of fifteen days, renewable once under the same conditions of form and duration. The judge’s decision must be in writing, setting out the justification and granted for a maximum period of one month (renewable once under the same conditions of form and duration).

The CPP provides that, further to the judge’s order, the judge or the police officer appointed by the judge or the public prosecutor may issue a judicial order requiring the telecommunications operator to provide assistance in implementing the interception system.

Under the CPP, interceptions can extend to data stored outside France.

CUSTOMS CODE

Article 65 of the Customs Code provides that, as part of French customs investigations, the French customs agents may request from telecommunications operators and electronic communication service providers all connection data which the latter retain and process.

FRENCH CODE OF POST AND ELECTRONIC COMMUNICATIONS

Article 98-7-III of the French Code of Post and Electronic Communications (hereinafter the “CPCE”) also provides that electronic networks operators are under the obligation to implement the necessary measures to allow the implementation of interception capabilities as provided for under French legislation.

DISCLOSURE OF COMMUNICATIONS DATA

FRENCH CODE OF POST AND ELECTRONIC COMMUNICATIONS

The CPCE requires, under article L34-1-III, that electronic communication service providers retain connection data, mainly for the needs of the research, establishment and sanction of criminal offences for a period of up to one year.

Article L32-1-II of the CPCE specifies that electronic communications service providers are required to implement the relevant internal procedures to answer the requests received from public authorities regarding user data. The same applies to access providers.

FRENCH CRIMINAL PROCEDURE CODE

For requests outside the scope of national security, the competent authorities will be required to issue a formal request (“réquisition judiciaire”) to the electronic communications service provider. The competent authority to issue the request will depend on the exact nature of the investigation conducted:

  • Requests made in the context of an investigation in “hot pursuit” (investigations made in “hot pursuit” are defined by the CPP as investigations conducted when an offense is being committed or has just been committed as well as when very shortly after the act, the suspect is designated or followed by “public clamor” or is found with objects or presents traces or clues leading to believe that he/she participated to the offense) can be issued by the public prosecutor in charge of the investigation or by a judicial police officer (article 60-1 of the CPP).
  • Requests made in the context of a preliminary investigation can only be issued by either the public prosecutor in charge of the investigation or by a judicial police officer (article 77-1-1 of the CPP).
  • Requests made in the context of an investigation conducted by an investigation judge may be issued by the judge himself or by a judicial police officer duly appointed by the judge (Article 99-3 of the CPP).

CUSTOMS CODE

Requests made in the context of an investigation conducted by the French customs (Article 65 of the Customs code).

NATIONAL SECURITY AND EMERGENCY POWERS

CODE OF NATIONAL SECURITY

Article L 244-2 of the CNS provides that the competent authorities can request from electronic communications network operators that they provide all necessary information relating to the implementation or exploitation of authorised interceptions.

Article L244-3 of the Code of National Security (in French the Code de la Sécurité Intérieure, created on 12 March 2012 by gathering a number of existing laws, hereinafter the “CNS”) expressly provides that the Ministry in charge of electronic communications must ensure that electronic communication network operators and other electronic communication service providers implement all necessary measures to comply with the obligations imposed as per the provisions of the CNS and of the Code of Criminal Procedure (the “CPP”).

Communications data may be required based on a standard request issued by intelligence agents sent to the relevant service provider. The request must in most cases have been authorised by the Prime Minister after a written and justified request sent by the Ministry of Homeland Security or by the Ministry of Defence or of the Ministry of Economy. Prime Minister authorisation is not necessary for access to documents and information necessary to conduct general surveillance of radio transmissions.

In addition, on 18 December 2013, the French parliament adopted a new law on military spending for the period of 2014 to 2019 in which modifications to the CNS were adopted. Among these, certain provisions have been added to the rules relating to government access to metadata which will come into force as of 1 January 2015.

According to future Articles 246-1 through to 246-5 of the CNS, duly appointed agents of the Ministries of Homeland Security, of Defence and of Economy will be entitled to request access to identification information from electronic communication services providers and internet service providers if justified by the purposes which may justify the authorisation of security interceptions by the Prime Minister. Agents of the intelligence services may request from all operators of electronic communications that they provide any information or documents “processed or retained by their networks or electronic communications services”. Such request is made further to a written authorisation issued by the Prime Minister which is valid during 30 days.

In addition, these provisions will also allow agents to request disclosure of the data in real time. The provision is intended, among other things, to permit intelligence agencies to have access to location data in real time.

OVERSIGHT OF THE USE OF THESE POWERS

Under Article 100 of the CPP, interceptions are conducted under the authority and supervision of the investigating judge. The same article expressly provides that the decision does not bear the status of a judicial decision and is therefore not subject to appeal before any judge.

Under Article 706-95 of the CPP, interceptions are conducted under the authority and supervision of the judge in charge of liberties and custody. Data subjects are not necessarily informed of the interceptions. Here too, the decision does not bear the status of a judicial decision and is not subject to appeal.

For requests for disclosure of communications data issued in investigations in hot pursuit or in preliminary investigations, the validity of the request may be challenged before the investigations appeal court. The decision itself of issuing a request may not be challenged but its validity (e.g. if it was not issued by a duly empowered police officer) may be.

For requests issued by an investigation judge, the decision to issue a request may be submitted to appeal by the investigations appeals court.

Requests by the French customs are not subject to judicial oversight.

Interceptions authorised by the Prime Minister on the basis of the CNS are subject to review by the Commission for the Control of Security Interceptions (hereinafter the “CCSI”) which only has a consultative role and whose intervention only occurs after the decision of the Prime Minister. The Prime Minister is required to send his or her decision to the President of the CCSI within 2 days of the decision. If the President of the CCSI considers that the legal grounds of the decision are challengeable, he or she calls for a meeting of the CCSI which must issue its position within 7 days of receipt of the decision by its president. If it considers that the interception has been authorised in violation of the relevant legal provisions, the CCSI issues a recommendation to the Prime Minister, to the Minister who requested the interception and to the Minister in charge of Electronic Communications. The Prime Minister is not bound by the recommendation but is required to immediately advise the CCSI of the measures undertaken further to the recommendation. The CNCIS is informed afterwards but has no power to cancel or modify the request.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

FRENCH CODE OF POST AND ELECTRONIC COMMUNICATIONS

Under Article L36-11 of the French Code of Post and Electronic Communications the French Regulatory Authority for Postal and Electronic Communications (“ARCEP”) may, under its own powers or at the request of the Minister responsible for electronic communications, sanction network operators or electronic communication service providers, for breaching legislative and regulatory provisions relating to their activities. Such sanctions may extend to ordering a full or partial suspension of the operator or service provider’s activities. ARCEP’s powers could therefore be used to shut-down Vodafone’s network or certain of its services should Vodafone be found to be in breach of its legislative or regulatory obligations.

A suspension may range from 1 month to 3 years, depending on the seriousness of the breach. ARCEP may give the network operator or electronic communication service provider time to resolve the breach before ordering the suspension.

BLOCKING OF URLS & IP ADDRESSES

LAW ON CONFIDENCE IN THE DIGITAL ECONOMY OF 21 JUNE 2004

The Law on Confidence in the Digital Economy of 21 June 2004 imposes upon network operators (such as Vodafone) the obligation to block without delay access to websites containing content featuring child sex abuse listed by the relevant governmental administrative authority.

LAW NO. 2010-476

The French online gaming agency (“ARJEL”) also has the power to seek a blocking order for illegal gambling websites pursuant to Article 61 of Law No. 2010-476 of 12 May 2010 (which is the French law relating to online gambling). In the event that ARJEL identifies an unauthorised gambling website, it will send a cease and desist letter to the online gambling operator. Should the online gambling operator fail to comply with the letter within 8 days, the president of ARJEL may request the President of the Paris Tribunal of First Instance to issue a court order for network providers (such as Vodafone) to block access to the offending website.

POWER TO TAKE CONTROL OF VODAFONE’S NETWORK

The French government does not have legal authority to take control of Vodafone’s network.

OVERSIGHT OF THE USE OF POWERS

FRENCH CODE OF POST AND ELECTRONIC COMMUNICATIONS

ARCEP’s decisions may be subject to appeal before the highest French administrative court, the Conseil d’Etat.

THE LAW ON CONFIDENCE IN THE DIGITAL ECONOMY OF 21 JUNE 2004

There is judicial review of the blocking of websites containing content featuring child sex abuse and any network provider, including Vodafone, may appeal the government’s order.

LAW NO. 2010-476

The government’s request for a court order requiring network providers to block access to an unauthorised gambling website is reviewed by the court presiding over the request; a court will only make the order if satisfied that it is lawful.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.

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