Scared by the controversies over the Global Security bill, did the government want to go too quickly on its decrees on the filing? Anyway, the controversy took place and also raises the question of the legitimacy of the CNIL.
According to a Mediapart survey, taken up by the NextINpact site, if the National Commission for Informatics and Freedoms (CNIL) had already issued mixed opinions on the three texts of the decrees pushed by the government in December, and which extend file options considerably in France, it did not have the opportunity to comment on certain particularities of the text which were added after its opinions. Above all, the committee was not consulted on the introduction of the criterion of political “opinions” in these files for the prevention of attacks on public security (PASP) and the management of information and the prevention of security attacks. public (GIPASP).
The head of the regulatory affairs department of the CNIL specifies to our colleagues: “The opinion does not constitute an authorization or a refusal. The aim is to advise the government and the latter may modify its text to take account of the opinion or the subsequent examination made by the Council of State. ”
The passage in force of the government on this subject, which chose to legislate by decree (decree file of prevention of attacks on public security, decree management of information and prevention of attacks on public security and decree related administrative inquiries public security), however, raises several questions.
The CNIL: guarantee of transparency or a real safeguard?
The first question concerns the role of the CNIL as a safeguard of a greedy power, beyond the simple role of advice. As with the NextINpact analysis, since the Data Protection Act of 1978, the opinions of the commission had to be “compliant” and therefore followed by the government, but since a 2004 reform, said opinions are no longer only “advisory”.
Before this law of August 6, 2004, it was precisely prohibited “to collect and record sensitive data (ethnic origin, political or religious opinions, customs, etc.)”, moved former employees of the CNIL in a forum published at the time. But the reform precisely provided for nine exceptional cases which now resonate with the current context.
However, this is what the three new government decrees published in the Official Journal on December 4 induce: to collect, for filing purposes mainly for territorial intelligence, data on political opinions, activities on social networks, religious behavior or health related. If the fight against religious radicalism is the priority objective of these decrees, it also aims to counter violent demonstrators and the phenomenon of sports hooliganism … but union membership could also be recorded, as well as political opinion. and no longer just political “activity”.
This extension of the possibility of filing did not fail to generate a fairly lively media controversy and Gérald Darmanin promised on December 10 at the microphone of Franceinfo that his ministry would provide details on these decrees: “We will specify the decrees, there is no problem since we have these exchanges. We will first clarify the decrees, public opinion, we will have further discussions with the CNIL. I recall that she gave favorable opinions, she made remarks here and there and it is quite normal that the independent administrative authority responsible for the data of our fellow citizens, in any case to see that the State and others do not do anything, I am a Republican minister and obviously I answer to republican institutions. But today we should not see it as a sort of Big Brother. ”
The minister failed to specify that the CNIL had issued its opinions in June before details such as political “opinions” were incorporated into the decrees.
The white paper: a tool for further reflection?
We can also be surprised that the white paper on internal security published by Beauvau in November, with more than 300 pages and which recommends several small reforms in the area of internal intelligence does not mention the decrees in question. On the other hand, on the subject of biometric files, the document deplores their “strict segmentation” and recommends harmonizations in terms of multi-biometric data in judicial files … and to point out “a French delay in the efficient use of biometric data in the files in relation to our partner countries and the European Union. ”
In addition, the book is in a way ahead of the decrees and recommends the “creation of a full-function facial biometric database, shared between the various police applications. It would include on the one hand as today the reference images, but also on the other hand, the exhaustive set of unidentified traces, like what exists for papillary and genetic traces.[…] Experiment in a real situation then, if the result is positive, widely deploy technologies for the capture and conservation of three-dimensional reference data ”.
The White Paper also proposes to create a new common file on organized crime: the National Organized Crime Objectives File (FNOCO).
The right government in its kingly boots with 2022 in its sights?
In any event, whatever the future of these various provisions desired by the current government and its majority (white paper, decrees, national plan for maintaining order and proposed comprehensive security law) which have already been adopted. been confronted in just three years with the jihadist threat, the vigorous or even criminal expression of social anger, an increase in violence (especially against the security forces) and a global pandemic, the seizure of the Elysee Palace , Matignon, Bourbon and places Beauvau and Vendôme on the regal seems to be on a firmer path for its last real year in office to come. Some might even judge that the government and its majority show a certain relaxation vis-à-vis the exercise of this power.
This did not prevent worried unions – the CGT, FO, FSU, the Syndicat des Avocats de France, the Syndicat de la magistrature, Solidaires, l’Unef, as well as the Gisti association – from filing an appeal against these three last decrees to the Council of State which was to examine it on December 23. The Council’s opinion, if delivered, has clearly not yet been published.