Constitutional Sovereignty in the Digital Age: A Legal Analysis of the French Council of State”s Decision in the French Data Network Case on Balancing National Security and Data Privacy

Abstract

This article analyzes the conflict of legal norms between national security imperatives and privacy rights in the digital age through the landmark decision of the French Council of State (Conseil d”État), sitting in Assembly, dated April 21, 2021, in the French Data Network et autres case. This ruling represents a critical turning point in determining the legal status of data retention (conservation des données de connexion) amidst pressure from the Court of Justice of the European Union (CJEU), which prohibits general and indiscriminate retention (conservation généralisée et indifférenciée).

The study reveals that the Council of State employed sophisticated legal reasoning to avert a “war of judges” without explicitly rejecting the CJEU”s authority. Instead, it adopted a constructive interpretation to assert the Primacy of the Constitution (Primauté de la Constitution) over EU secondary law whenever the essence of constitutional identity is at risk. Furthermore, the decision established a new legal framework by distinguishing the retention requirements between “IP addresses” (Adresse IP) and other traffic data, while redefining “serious threats to national security” (menace grave pour la sécurité nationale) to align with operational realities, thereby preserving essential tools for criminal investigation and counter-terrorism.

Consequently, this article presents academic insights and a comparative case study to serve as a guideline for Thailand in formulating cybersecurity and computer crime laws. It aims to achieve a sustainable equilibrium between the state”s sovereign power to maintain public order and the obligation to protect personal data rights in accordance with international standards.