The Conseil d’État's urgent applications judge has rejected an appeal, brought by an individual and an organisation, to suspend the decree implementing the provisions of the French Internal Security Code that authorise law enforcement agencies to use camera drones for the purposes of preventing breaches of public order and protecting the safety of persons and property. The judge ruled that there was no serious doubt as to the legality of this decree given the guarantees provided within the legal framework and the decree itself concerning compliance with the requirements to protect privacy and personal data under French and European law. The judge also noted that each prefectural authorisation's compliance with these requirements remains subject to judicial review by the administrative judge, to whom such cases, including urgent applications, may be referred.
The applicants asked the Conseil d’État's urgent applications judge to suspend the decree of 19 April 2023, issued to implement the provisions of the Internal Security Code authorising law enforcement agencies to use airborne cameras for the purposes of preventing breaches of public order and protecting the safety of persons and property, resulting from the law on criminal liability and internal security of 24 January 2022.
The judge noted that the Constitutional Council had confirmed, in its Decision No. 2021-834 DC of 20 January 2022, that the law itself was consistent with the French Constitution. The law strictly defines the six purposes that justify the use of such devices to prevent serious breaches of public order and ensure the safety of persons and property. It also makes their use subject to authorisation on a case-by-case basis, and conditional on the absence of any other means of achieving the purpose. The judge also recalled all the requirements arising from the law and the contested decree, which include the proportionality of the device deployed in time and space; the limitations on the content and retention of recorded data; the management and supervision of individuals likely to access such data; the prohibition on combining drones with other data processing devices (including facial recognition technology), and the exclusion of recording images of private homes. The judge took the view that compliance with these provisions (ascertained by authorisation by the Prefect issued on the basis of a precise, specific, case-by-case assessment of the necessity and proportionality of the use of camera drones) should ensure that their use adheres to the requirements of the right to privacy and the protection of personal data as defined by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Union's police and criminal justice Directive of 27 April 2016, and the French Data Protection Act (Loi informatique et libertés) of 6 January 1978. They emphasised that the compliance of each prefectural authorisation could be challenged before the administrative judge, including the request to suspend an authorisation as a matter of urgency. In this respect, they noted that authorisations must be published with sufficient notice to allow timely access to the judge (except where there are compelling reasons for urgency to maintain and protect public safety in a serious situation).
The Conseil d’État also felt that it would be useful to provide details on some of the conditions of use for devices in the “policy for use” documents produced by each of the ministries concerned. This information would be shared with the CNIL (Commission nationale de l’informatique et des libertés [French Data Protection Commission]) as part of its supervisory role. However, the law does not require these details to be included in the decree itself, as they are operational rather than legal in nature.
Finally, the judge emphasised that the law and the decree require the public to be informed about the use of such devices, which necessarily includes the people likely to be filmed, including at the scene of the operation in question. As provided for in Article L. 242-8 of the Internal Security Code, the decree specifies the circumstances in which exceptions may be made to this principle of informing the public, when urgency or operational conditions prevent it, or when such information contradicts the operation itself. In particular, exceptions apply when the device is used to ensure the safety of public gatherings when there is a risk of serious disturbance.
In light of these factors, the Conseil d’État's urgent applications judge held that, given the status of the proceedings and the role of the urgent applications judge, the grounds put forward by the applicants did not give rise to serious doubt as to the legality of the contested decree, which would justify its emergency suspension. They, therefore, rejected the applicants' request for suspension.
The Conseil d’État will rule on the legal merits of the decree in the coming months.
Read the decision (in French)