In a decision rendered on 30 December, 2024, the Conseil d’État[1] (Council of State) dismissed the appeal made by four associations (the Ligue des droits de l’Homme ; the Association de Défense des Libertés Constitutionnelles ; Data Ring ; and La Quadrature du Net) against Decree 2023-283 on the use of drones by law enforcement agencies.
This ruling follows a legal proceeding initiated in 2020 concerning the use of drones to monitor public gatherings and manage the end of the Covid-19 lockdown. At that time, the Conseil d’État issued two rulings prohibiting the use of drones (CE 05/18/2020 no. 440442 and CE 22/12/2020 no. 446155). This is a position that was also adopted by the Conseil Constitutionnel[2] (Constitutional Council), which ruled that Article 47 of the global security law concerning the use of drones by law enforcement agencies did not comply with the French Constitution and was therefore partially rejected (CC 20/05/2021 no. 2021-817 DC). However, when the issue was discussed in light of the Criminal Liability and National Security Law, the Constitutional Council reversed the ruling, adjudging that the use of drones in such a way complied with the Constitution, albeit with reservations as to how the law should be interpreted (CC 20/01/2022 no. 2021-834 DC).
In response to the appeals by four associations to quash Decree 2023-283 of Law no. 2022-52 of 24 January, 2022, regarding Criminal Liability and National Security, the Conseil d’État has reversed its position and authorised law enforcement agencies (the police, the gendarmerie, military personnel deployed on national territory, and customs authorities) to use drones. It stated that the existing legal framework guaranteed compliance with the requirements for the protection of personal data and privacy as laid down by national and European law.
In support of its decision, the administrative judge observed that the number of agencies authorised to use the systems is limited, as is the scope of reasons for their use, and that data processing must be strictly necessary, adapted to the circumstances, and must not be permanent.
The Conseil d’État pointed out that the drones may not capture sound or include automated facial recognition processing, and that automated matching, interconnection or linking is prohibited whether or not the drone contains an automated system, as enshrined by the Constitutional Constitutional’s reservations regarding interpretation (CC 20/01/2022 no. 2021-834 DC).
The administrative judge recalled that the use of drones is subject to authorisation from a state representative, who determines the purpose, geographical area, and maximum number of cameras that may be deployed simultaneously. In addition, the state representative is required to ensure, prior to issuing the authorisation, that every effort has been made to consider other, less intrusive means of conducting the operation; if such means are likely to pose a serious threat to the physical integrity of agents, then drones may then be authorised, in accordance with the reservations laid out by the Constitutional Council (CC 20/01/2022 no. 2021-834 DC). The authorisation is limited in time, for a maximum duration of three months, and is only granted for the period during which the gathering takes place, providing that the purpose is to ensure the security of public gatherings. Furthermore, it is also possible to appeal against the authorisation through the administrative court.
Lastly, the Conseil d’État stated that the retention period for the data collected is limited to 7 days following the end of the deployment. The system cannot be used to collect images of the interior or entrances of domiciles; however if the recording cannot be interrupted due to certain circumstances at the time the operation takes place (objective material circumstances) and record these areas, the data must be deleted within 48 hours.
Based on the above conditions, the Conseil d’État dismissed the appeals to quash the Decree, as well as requests to refer the matter to the Court of Justice of the European Union for a preliminary ruling.
Further information can be found here about how facial recognition is being used by French law enforcement agencies to support criminal investigations.
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S.P
[1] The Conseil d’État is the highest jurisdiction in the administrative judiciary in France.
[2] The Constitutional Council is an institution that ensures laws and certain regulations comply with the French Constitution.
