Status
The French Intelligence Act of 24 July 2015 includes provisions for establishing a body with the authority to provide oversight of the country's intelligence services while acting in complete independence of Government and Parliament. That body is the CNCTR, an independent administrative authority whose composition, operating rules and mission have been enshrined in Book VIII of France's Internal Security Code, which focuses on intelligence.
The Commission verifies whether the intelligence-gathering techniques implemented within the operational chain for collecting and exploiting information are used in strict compliance with legislation. In turn, the Commission reports on its findings to Parliament and the public.
To provide effective oversight, the Commission has been vested with the authority to act independently of the Government and has the appropriate means and resources to exercise its statutory powers.
The CNCTR's oversight activities are coordinated by a committee of nine members
Committee members are designated as part of an appointment process that aims to strengthen the Commission's independence from the Government. The committee comprises:
• Four MPs, i.e. two deputies and two senators, appointed by the President of their respective chambers to ensure pluralistic representation of Parliament
• Two members of the Council of State, appointed by its Vice-President
• Two magistrates of the Court of Cassation, appointed by both the President and the Attorney General of the Court of Cassation
• An expert in electronic communications, appointed by the President of the Republic on the proposal of the President of the French Telecommunications Regulatory Authority
The President of the CNCTR is chosen by the President of the Republic from the members designated by the Council of State or the Court of Cassation. The President's appointment is subject to the provisions of Article 13 of the Constitution, which requires the National Assembly and the Senate to issue their prior public opinion.
The term of office for members is six years (however, MPs are appointed solely for the duration of their term of office within their relevant chamber).
Terms of office are not renewable, which is another measure aimed at ensuring the CNCTR's independence. In accordance with legislation, appointments ensure that women and men are equally represented within the Commission.
An independent Commission subject to strict rules of professional conduct
The Commission's independence is guaranteed by its statutory status.
To ensure the independence of the Commission's members, the law stipulates that they will not receive instructions from any authority when exercising their powers.
Conflicts of interest are prevented by binding members with the provisions of the Law of 11 October 2013 on transparency in public life, and the Intelligence Act of 24 July 2015 which prohibits them from taking a direct or indirect interest in an intelligence service, an electronic communications operator or an Internet service provider.
Finally, the rules of procedure, which are openly available to the public, specify the ethical obligations and code of conduct that Commission members and officers are required to uphold. In particular, it sets out the obligations for loyalty, confidentiality, impartiality and neutrality that they must observe at all times during their duties and after their term of office.
The CNCTR, a "trusted third party"
As an independent authority with extensive powers to oversee the implementation of intelligence-gathering techniques, the CNCTR reports on its oversight activities and acts as a "trusted third party" towards Parliament and the public.
The CNCTR has been vested with a mandate to provide oversight that can only be achieved by a body that is independent from Parliament and the public, in accordance with the principle of the separation of powers and with regard to the requirements of national defence secrecy that encompasses the actions of the country's intelligence services. In turn, the CNCTR reports to Parliament and the public on its oversight activities and its findings on how the legal framework governing intelligence-gathering techniques is implemented.
Without disclosing the operational methods used by the intelligence services, it provides the public with information about the way in which such techniques are used. Its annual activity reports include the:
• Number of requests to implement intelligence-gathering techniques
• Purposes specified in those requests
• Number of negative opinions issued in relation to those requests
• Number of people under surveillance using intelligence-gathering techniques
In addition to the information featured in its reports, the CNCTR releases public reports on its thoughts about the legal framework for intelligence-gathering techniques. It also presents its findings before Parliament and in its opinions, whether on its own initiative or at the request of the Government, about the law governing techniques for gathering intelligence. Its public opinions are available on this website.
Protecting national defence secrecy
Intelligence services require confidentiality to carry out their missions. Their ability to discreetly collect and use the information that they are looking for depends on secrecy. Therefore, the purpose of protecting national defence secrecy is to maintain the confidentiality of certain types of information whose disclosure could harm the operational efficiency of the intelligence services' actions.
Consequently, legislation specifies that the CNCTR's work relating to the operational activities of the country's intelligence services is covered by national defence secrecy and bound by the same specific security measures as those imposed on the intelligence services.
CNCTR members are granted clearance by law to access the classified information that is essential for performing their duties. The Commission's officers are subject to a clearance procedure to access the same information.
Article 3 of the Commission's rules of procedure also sets out the rules governing the need to know information covered by confidentiality: if members and officials have access to all the information required to perform their duties, information may only be shared with parties outside the Commission on a strictly need-to-know basis.