In an order dated May 3, 2021, the Lyon administrative court ruled that a citizen did not justify an emergency situation in order to obtain the suspension of a prefectoral authorisation to monitor demonstrations using a helicopter to capture images. What about the recovered data?
"You have not seen a tree until you have seen its shadow from the sky”. These few words of the American aviatrix Amelia Earhart could be used today by the police forces as they resort to the capture of images by means of airborne devices (aeroplanes and helicopters or drones) in order to carry out their missions more effectively and ensure the security of their interventions in all parts of the country. This is why an activist brought an action before the administrative court in Lyon to suspend the overflight of gendarmerie helicopters during the demonstrations. For the latter, the use of aerial cameras was "a serious and immediate infringement of the right to privacy, the right to protection of personal data, as well as the freedom of expression and the freedom to demonstrate".
Nevertheless, after recalling that an administrative act can only be suspended "when its execution infringes, in a sufficiently serious and immediate manner, a public interest", the judge considered that "the perfectly hypothetical circumstance that Mr L. would be likely to be subject, at a forthcoming event in which he might take part, to the surveillance measures at issue, by a helicopter equipped with an image capture device, in breach of the rights and freedoms he invoked, is not likely to make it possible to characterise the existence of a situation of urgency justifying the intervention of the interim relief judge within the short period provided for in the aforementioned Article L. 521-1 of the Code of Administrative Justice”.
Admittedly, by adopting a "hypothetical" situation, the solution was expected, but this dispute raises another question: that of knowing whether investigators can use images captured by cameras on board helicopters to try to identify people during demonstrations?
In fact, the use of cameras on board helicopters is not, as the law stands, governed by any specific rule - unlike the use of drones - and has never been sanctioned by the judge or by the CNIL.
Consequently, there is no limit to the use of helicopters by police forces to monitor the public highway, even though, as the State Council has pointed out, "the use of these devices in all places and by many authorities, including for surveillance purposes, raises issues in terms of the fundamental guarantees granted to citizens for the exercise of public freedoms or, as regards situations involving a judicial dimension, leads to questions about the necessary framework in terms of criminal procedure" (Conseil d'État, 20 Oct. 2020, Opinion No. 4012014)
However, ignoring the criticism, parliamentarians recently legitimised mobile video surveillance (drones, pedestrian cameras, on-board cameras) within the so-called "Global Security" bill. However, given the uncertainties regarding the length of time that the data collected will be kept, the types of places that can be filmed, access to images or information on the capture, could the Constitutional Council, which has been seized of this text on April 20 ,2021, shuffle the cards in order to refuse the militarisation of the surveillance of public space? To be continued.
DATA IT/ IP TEAM