After the attacks of November 13, a monitoring mission of the state of emergency was introduced in the Senate. On this occasion, several anti-terrorist judges reported on problems in their daily lives to technological developments.
In this exchange organized on December 9, and now transcribed on the Senate website, Laurence Le Vert, first vice president of instruction at the anti-terrorist branch and security breaches in the State High Court of Paris, and David Benichou, Vice President of the instruction to the anti-terrorist branch and breaches State security in Paris Court thus expressed their complaint.
“ Changes in technology problem, describes the magistrate. For the jihadists, it is a weapon of war. For us it is a risk of destruction of our procedures . ” Why ? Just because “ most of the evidence comes from various media phones tablets , hard drives, DVD, keys USB and SD cards as well as internet and telephone interceptions flow . ” However, the Code of Criminal Procedure obliges “ the availability of the entire contents of the file to the defense of the parties ,” the trial record to be “ any full time , readable and accessible. “
The interception of trade, the flow and inventory
Another concern highlighted by his colleague: the question judicial interceptions, which allows the judge to wiretap a telephone or an electronic voucher (email, etc.). These interceptions are interested only future stream, not to the existing stock.
For a judge can already take note of mails sent or received, so it is imperative switch to the search, which is anything but discreet. “ This means preventing the person and achieve data entry in his presence! (…) The seizure of electronic correspondence already arrived can only be done as search eliminates any privacy in the survey, as required by law to prevent raided and allow him to attend this operation, or to appoint representatives . “
The problem with Gmail and Hotmail
Similarly, when the targeted person uses a remote account. David Benichou plays recalls that Article 57-1 of the Code of Criminal Procedure, which conditions the remote search the existence of international agreements signed by France with other host countries. However, “ Gmail or Hotmail account is not located in France and no international agreement authorizes extraterritorial data entry. This requires a request for Mutual Legal Assistance, which would place us in time irreconcilable with the investigation. And the lawyers know better and better argue the lack of international agreement … “
The judge suggested a reform track:” line entry matches past interceptions over that of the coming matches, even provide a grandfathering period, why not modeled on the prescription . ” For him, in fact, “ This is the same type of infringement of privacy: the safeguards that apply to one apply to the other .” The idea did not fall in deaf ears since Philippe Bas, chairman of the Senate Judiciary Committee, has already filed a bill against terrorism in particular aimed to create “ an autonomous system Entry email data, independent of the search, if the email address is already the subject of an interception of electronic correspondence . ” Adopted, the text would allow judicial police officers and agents “ access, anywhere, digital correspondence sent or received. ”
Two legal Trojan horses harnessed to the Ministry Justice
The capture data remotely raises difficulties. Since LOPPSI 2 of March 14, 2011, the investigating judge may, after consulting the prosecutor, by reasoned order authorizing officers and agents of the judicial police “ to set up a technical device for the purpose, without their consent, to access, in all places, to computer data, save them, keep them and pass them as they are displayed on a screen for the user of an automated processing system data or such that are introduced by the character input . ” Only these Trojans gallop especially in Dalloz codes, at least in the judges offices. David Benichou explains the reason: “ we can rely only tools previously authorized by a specific commission ANSSI “(see on this, our news).
It reveals that only one horse Tro r ie” legal “was authorized then two since 2014 … It’s very little or nothing since “ the Ministry of Justice still has not made notr e available ” laments the anti-terrorist judge . And it is not certain that the idea was welcomed by the Ministry of the Interior: “ The intelligence services monopolize the tools and do not put them at our disposal, for fear of disclosure see “continues David Benichou. “ Yet they have a very short lifespan. Unlike the cons-intelligence, the fight against terrorism is primarily a legal problem: we have a constant operational need of these. “
” What is the point of giving the judge in the law, investigative techniques, but not to give them the means to implement them? “chips away even the magistrate. Senator Philippe Bas has again taken his pen to inject these suggestions in its draft law against terrorism. He wants judges to make use of experts or technical assistance centers (CTA) in order to design these Trojans.
The safe future draft government law
In government, one of the complaints has also been heard in a text written after the events of November 13.
In outline contained December 23 by Bernard Cazeneuve, and Christiane Taubira, it is thus planned to allow “ Interception of already archived messages ” indicates the document. Other measures on the fire include the use of IMSI catcher from the stage of the investigation or trial, at least in terms of organized crime, in addition to the sound, the setting of images, the capture of data flagrancy or preliminary investigation, and a strengthened communication right into the hands of TRACFIN targeting groups responsible for ensuring interoperability and security of payments by credit card.