Unlike vehicle geolocation, telephone tracking requires prior authorization

French law on geolocation – technology making it possible to determine the location of a person with a certain precision – does not respect the requirements of European Union law, ruled the criminal chamber of the Court of Cassation in a stop delivered on February 27, 2024. Indeed, articles 230-32 and 230-33 of the code of criminal procedure authorize the public prosecutor to order the geolocation of a telephone and allow investigators to access real-time data from location of the device without providing prior control. The authorization of the public prosecutor is sufficient.

Controlling the invasion of privacy

However, the geolocation of a phone requires access to location data via mobile telephone operators which constitute electronic communications services accessible to the public. As a result, the latter are governed by the European directive “Privacy and electronic communications” of July 12, 2002 as interpreted by the Court of Justice of the European Union. In a decision of March 2, 2021, the judges decided that real-time access to location data must be authorized by a court or an independent administrative entity. This will have to verify whether the requested measure is proportionate and strictly necessary to the issues of the current procedure. The objective: to verify that the invasion of privacy represented by the geolocation of a phone is necessary.

(…)