Mission
The CNCTR oversees the actions of the intelligence services and ensures that the techniques used to gather information across the country are implemented in accordance with legal provisions.
The CNCTR ensures that intelligence services comply with the law
The Intelligence Act of 24 July 2015 introduced a general legal framework to govern the activities of the intelligence services with the aim of protecting privacy.
Sometimes, the intelligence services need to take significant measures to discreetly gain access to the required information without the knowledge of the people possessing such information and thereby compile intelligence about any threats or risks that could affect the life of the Nation. To carry out their missions, they may be authorised to use privacy-infringing techniques, subject to the CNCTR's oversight, such as accessing telephone statements, intercepting private correspondence, recording images and speech in a private place or collecting computer data. These are intelligence-gathering techniques.
Legally authorised services
First of all, legislation stipulates that only certain services may be authorised to use privacy-infringing techniques to find and collect information.
This facility is limited to services with the necessary legal power to use the preventive actions of the administrative authorities, such as to maintain public order or safeguard national security (e.g. counterespionage or preventing terrorist acts).
Specialised intelligence services, including the Directorate-General for Internal Security and the Directorate-General for External Security, can use most of these techniques, while other services are allowed restricted use of these techniques, depending on their remit. This applies to law enforcement services whose main mission is not to gather intelligence, but instead prevent crime.
Techniques defined by law
The legislator has defined the techniques that these services may use, while specifying the conditions for implementing each technique and the terms for overseeing its use.
Some services may be allowed to enter a residential property to install their surveillance devices.
Limited number of purposes
Finally, the law dictates that the use of these techniques is subject to grounds of general interest. It provides a list of the Nation's fundamental interests where intelligence-gathering techniques may be warranted.
Therefore, these techniques may only be implemented for the purpose of preventing activities that are likely to constitute a serious threat to those interests, such as preparing acts of terrorism or participating in criminal organisations, as well as involvement in acts of violence intended to undermine public order.
Intelligence may also be collected to promote France's geopolitical interests, particularly to counter foreign interference attempts, or safeguard its major economic, industrial and scientific interests.
Therefore, the CNCTR checks that these techniques are used solely in accordance with the missions entrusted to the intelligence services and that their use is warranted on legitimate grounds that can legally justify the need for their implementation.
Subsequently, the CNCTR ensures that the resulting breach of privacy, especially confidentiality of private correspondence, personal data protection and inviolability of the home, is proportionate to the severity of the threats or the scale of the challenges claimed by the intelligence services. There are obvious differences in the extent of the intrusion, depending on whether the technique involves obtaining a list of the person's contacts (mobile phone records) or installing a listening device in their home.
Oversight measures are reinforced when intelligence-gathering techniques target individuals whose activities democratically justify special protection, including MPs, magistrates, journalists and lawyers.
Ex-ante and ex-post oversight concerns the implementation of all the information-gathering techniques provided for by law and extends to all the intelligence services authorised to use such techniques.
The CNCTR provides ex-ante and ex-post oversight
The CNCTR carries out oversight at each stage of the procedure for implementing intelligence-gathering techniques.
Ex-ante oversight
First of all, the Commission examines whether requests from intelligence services to use intelligence-gathering techniques are compatible with the law. This is known as ex-ante oversight.
At this stage, the Committee issues a positive or negative opinion to the Prime Minister before the Prime Minister takes a decision. This check covers all requests to implement intelligence-gathering techniques across the country, as well as requests to use the international electronic communications intercepted by certain services.
Ex-post oversight
The Commission may then check the way in which the authorisation issued by the Prime Minister has been put into action. This is known as ex-post oversight.
Whether acting on its own initiative or in response to a request from any individuals wishing to check that they have not been subject to an unlawful intelligence-gathering technique, the CNCTR ensures that the services are actually authorised to use those techniques and, where applicable, that they collect, exploit and, in certain cases, forward the information to other services solely according to the terms of the authorisation and to the extent permitted by law.
The CNCTR acts in an advisory capacity to the Government and Parliament
The CNCTR may deliberate on any matters within its area of responsibility, either on its own initiative or at the request of the Government and Parliament.
The Commission is regularly consulted to provide its opinion on plans to amend the legal framework for intelligence activities, as well as draft regulations. Its public opinions are available on this website.
The Commission is also regularly heard by Parliament, particularly the parliamentary intelligence delegation, to lay its conclusions on the application of the law before the members of this joint specialised body of the National Assembly and the Senate.
A legal framework to protect privacy
The legal framework created by the Intelligence Act of 24 July 2015 aims to "guarantee compliance with the right to privacy in all its forms, including the secrecy of private correspondence, personal data protection and inviolability of the home." The introductory article in Book VIII of the Internal Security Code, entitled "Intelligence", stipulates that "the public authority may only infringe privacy in the cases provided by law to protect the public interest, to the extent permitted by law and in accordance with the principle of proportionality."
The principle of respect for privacy is guaranteed at every level in the hierarchy of norms. Every day, this principle is invoked in the administrative and ordinary courts, which decide on the level of proportionality in case of a claim for infringement of privacy. The right to privacy has been an integral part of Article 9 of France's Civil Code since the law of 17 July 1970 was enacted to strengthen respect for citizens' individual rights. In 1999, the Constitutional Council recognised its constitutional value by considering that the freedom proclaimed by Article 2 of the Declaration of the Rights of Man and of the Citizen implied respect for privacy.
This principle is also enshrined in European and international law.
This right is set out in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Strasbourg on 4 November 1950 and has given rise to extensive case law in the European Court of Human Rights. According to the terms of Article 8, "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Finally, this principle was incorporated into Article 7 of the Charter of Fundamental Rights of the European Union.
To provide ex-ante and ex-post oversight, the CNCTR draws on all national standards that relate to the right to privacy and which are interpreted, where applicable, by judicial, administrative and international case law in this area.