What does the bill that proposes to “remotely activate” connected devices really say?

It is a text that has agitated both the legal community and some Internet users on social networks for several days: article 3 of the draft programming law of the Ministry of Justice for the period 2023-2027which provides for the possibility of remotely activating electronic devices, such as smartphones, for investigative purposes.

A provision which sparked a strong reaction, particularly from lawyers at the Paris bar: in a press releasethe latter’s Criminal Commission has expressed reservations on this bill, and in particular on “this possibility (which) constitutes a particularly serious attack on respect for private life which cannot be justified by the protection of public order“.

Code of Criminal Procedure

If the concerns concern in particular the risk of abuses of such measures, what precisely does this article of law say? This is linked to the code of criminal procedure. This means that it concerns a system which can only take place within the framework of an investigation or a criminal investigation (not administrative, for example) and be triggered by an investigating judge or a judge of freedoms and detention.

In detail, the text says that “when the requirements of the investigation or investigation relating to a crime or an offense punishable by at least five years of imprisonment require it, the judge of freedoms or detention, at the request of the public prosecutor , or the investigating judge may authorize, under the same conditions as those mentioned in 1st and 2nd of article 230-33, the remote activation of an electronic device without the knowledge or consent of its owner or possessor for the sole purpose of locating it in real time. The decision then includes all the elements allowing this device to be identified. The remote activation mentioned in this article cannot concern electronic devices used by the people mentioned in article 100-7“, we can read in the text.

Mainly “for geolocation purposes”

Although it does mention this possibility of remotely activating the telephone, the article nevertheless specifies that this can only be done to “sole purposes of locating it”. Indeed, the text mentions that this article is in reality an addition to an already existing article, article 230-34 of the Code of Criminal Procedure, part of a large chapter dedicated to geolocation. Here is what the current article already says:

“In the cases mentioned in 1° and 2° of article 230-33, when the needs of the investigation or instruction require it, the public prosecutor or the investigating judge may, for the sole purposes to install or remove the technical means mentioned in article 230-32, authorize by written decision the introduction, including outside the hours provided for in article 59, in private places intended or used for warehouse of vehicles, funds, values, goods or equipment, or in a vehicle located on the public highway or in such places, without the knowledge or consent of the owner or occupant of the premises or vehicle or any person holding a right thereto.“

This therefore means that the remote activation of a smartphone will be governed by the same article of law as the authorization, for investigators, to enter a garage or a car to place a GPS tracker there, only for geolocation . And, therefore, the article specifies, this can only concern crimes or misdemeanors punishable by more than five years in prison.

Moreover, article 100-7 prohibits interceptions “on the line of a deputy or senator without the president of the Assembly to which he belongs being informed“. Same thing for lawyers: it would then be obligatory to notify the president of the bar. And for magistrates, it is the first president or the attorney general of the court who must be notified.

“Espionage” limited to the most serious crimes and offenses

That’s not all, because the bill proposes to amend other articles and in particular article 706-96 : it is written that “the judge of freedoms and detention, at the request of the public prosecutor, or the investigating judge, after consulting the public prosecutor, may authorize the remote activation of an electronic device without the knowledge or without the consent of its owner or possessor for the sole purpose of carrying out the operations mentioned in article 706-96“. This article, which concerns the listening and image capture teamsfalls within the framework of these “special investigative techniques” which, according to the code of criminal procedure, are only possible in limited cases (in summary, the crimes of murder, torture, rape, organized gang theft, etc. as well as crimes of fraud, money laundering, criminal conspiracy, etc.).

In this case, activating the phone (or another connected device) remotely can be more intrusive than geolocation alone, and can then serve as a sound or image recording device, but only in the framework of the most serious crimes and misdemeanors.

Basically, the purpose of this text is also to legally regulate investigative practices that have already existed for several years but which are not the subject of a framework in the law. The Council of State, which issued an opinion on the text on May 3, did not raise any objections to geolocation, but requested that access to telephone microphones and cameras be carried out on limited durations (no more than fifteen days, renewable once) by the investigators.