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Article Dans Une Revue Les Notes du CREOGN Année : 2020

INTELLIGENCE AND TERRORISM: WHEN THE INTERNAL SECURITY CODE IS IN THE SIGHTS OF THE EUROPEAN JUDGE

Résumé

opposes the provisions of the Internal Security Code on the collection and retention of data for counter-terrorism purposes. However, he does not question the Code's provisions as such. His analysis focuses first and foremost on the control of proportionality. For some years now, the Court of Justice has been building up a body of case law on the retention of connection data and intelligence tools in the light of European data protection standards. Do these conclusions mark a continuity of the case law or, conversely, the beginning of a shift? One thing is certain, however: they express a very demanding balance between security and freedom. Title VIII of the Internal Security Code is about to come under the scrutiny of the Court of Justice of the European Union (CJEU). One of its Advocates General, Manuel Campos Sánchez-Bordona, presented on 15 January 2020, conclusions in joined cases (C-511/18 and C-512/18) 1 concerning the collection and retention of data for counter-terrorism purposes. In these conclusions, he opposes legislation "which, in a context marked by serious and persistent threats to national security, and in particular the risk of terrorism, requires operators and providers of electronic communications service providers to retain, in a general and indiscriminate manner, the traffic data and location data of all subscribers" (§ 30 of Case C-511/18), even though the duration of that retention is limited to one year. These conclusions call into question the measures provided by Articles 851-1 to 6 of the Internal Security Code and Articles L. 34-1 and R. 10-13 of the Post and Electronic Communications Code (as well as Article 6 of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy). This concerns in particular the real-time collection and storage by electronic communications operators of data relating to persons suspected of terrorism (technical data relating to the identification of subscription or connection numbers, the location of mobile phones, numbers called and calling, the duration and date of communications). Several associations, La Quadrature du Net, French Data Network, Igwan.net and the Fédération des fournisseurs d'accès à Internet associatifs had asked the Conseil d'Etat to annul several decrees implementing certain provisions of the Internal Security Code 2 .
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Dates et versions

hal-04028865 , version 1 (19-04-2023)

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  • HAL Id : hal-04028865 , version 1

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Pierre Berthelet, Sylvie Peyrou. INTELLIGENCE AND TERRORISM: WHEN THE INTERNAL SECURITY CODE IS IN THE SIGHTS OF THE EUROPEAN JUDGE. Les Notes du CREOGN, 2020, 47. ⟨hal-04028865⟩
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