The Constitutional Council validates the use of techniques that are protected by national defense secret to capture computer data. This opacity is in accordance with the Constitution, because it contributes to safeguarding the fundamental interests of the nation.
The Encrochat case has just experienced a legal rebound in France. The Constitutional Council ruled this Friday, April 8 on a priority question of constitutionality (QPC) relating to the circumstances in which encrypted messaging, used for malicious purposes, could be compromised by the gendarmerie, within the framework of a extensive investigation.
For those who don’t know what it’s all about, Encrochat is the nickname given to an operation that emerged in the media in 2020. The national gendarmerie, it was reported then, has designed offensive software to compromise the conservations taking place in the Encrochat encrypted messaging — popular with criminals to fly under the radar.
This operation mobilized other law enforcement agencies in Europe and made it possible to dismantle networks, make arrests and carry out seizures, particularly in the area of drugs and weapons. Large sums of money were also recovered. Just like the Encrochat data obtained by the authorities: 120 million messages.
” It’s like we’re at the criminals’ table “, then welcomed Janine van den Berg, the boss of the Dutch police. But since then, a legal problem has developed around the secrecy that surrounded the development and use of techniques for capturing computer data used by the gendarmerie to pierce Encrochat.
Indeed, the system mobilized by the national gendarmerie turns out to be covered by national defense secrets. However, for the lawyers of certain parties implicated in this case, this opacity deprives them ” the possibility of contesting the regularity of the operation », and constitutes an infringement of equality in adversarial debate and of the rights of the defence.
A secret that harms the rights of the defense?
It is this balance between operational efficiency, which the authorities seek to preserve by not exposing certain IT capacities too much, and the legal principles of the rule of law, which found itself before the Constitutional Council. And in its decision, the institution considered that this secret use of certain tools is in conformity with the Constitution.
More specifically, the Council validated the second paragraph of article 706-102-1 of the Code of Criminal Procedure, born of the law on programming and reform for justice in 2019. This article precisely authorizes the use of means of the State subject to national defense secrecy. The provision being valid, the QPC was rejected accordingly.
The Constitutional Council observes a “ balanced reconciliation between constitutional requirements “, with on the one hand those ” inherent in safeguarding the fundamental interests of the Nation, including national defense secrecy », and on the other hand the guarantees provided by the fundamental texts, in particular the Declaration of the Rights of Man and of the Citizen.
The decision rendered by the Constitutional Council was received differently, depending on the point of view.
Guillaume Martine, lawyer at the Paris Bar, shared his ” disappointment »but observes that the same Board noted a “ certain number of safeguards which have not been respected in this case “. And if the Constitution was respected, the law would not have been, he adds.
His colleague, master Robin Binsard, also point out that the rest of the case will be before the criminal chamber, hearing scheduled for June 14, 2022 where the nullities of procedure relating to Encrochat will be addressed.
On the other side of the spectrum, gendarmerie officer Matthieu Audibert also spoke on the subject, seeing there a ” logical decision “: “ Only the capture device is protected by secrecy. Everything else is paid in procedure “. Clearly, the lawyers’ argument on disloyalty could not stand, because only technical points were treated otherwise.