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paragraphs 173 and 174).
Real-time collection of traffic and location data
183
The real-time collection of traffic and location data referred to in Article L. 851‑2 of the CSI may
be individually authorised in respect of a ‘person previously identified as potentially having links to
a [terrorist] threat’. Moreover, according to that description, and ‘where there are substantial
grounds for believing that one or more persons belonging to the circle of the person to whom the
authorisation relates are capable of providing information in respect of the purpose for which the
authorisation was granted, authorisation may also be granted individually for each of those
persons’.
184
The data that is the subject of such a measure allows the national competent authorities to monitor,
for the duration of the authorisation, continuously and in real time, the persons with whom those
persons are communicating, the means that they use, the duration of their communications and their
places of residence and movements. It may also reveal the type of information consulted online.
Taken as a whole, as is clear from paragraph 117 of the present judgment, that data makes it
possible to draw very precise conclusions concerning the private lives of the persons concerned and
provides the means to establish a profile of the individuals concerned, information that is no less
sensitive, from the perspective of the right to privacy, than the actual content of communications.
185
With regard to the real-time collection of data referred to in Article L. 851‑4 of the CSI, that
provision authorises technical data concerning the location of terminal equipment to be collected
and transmitted in real time to a department reporting to the Prime Minister. It appears that such
data allows the department responsible, at any moment throughout the duration of that
authorisation, to locate, continuously and in real time, the terminal equipment used, such as mobile
telephones.
186
Like national legislation authorising the automated analysis of data, national legislation authorising
such real-time collection derogates from the obligation of principle, established in Article 5 of
Directive 2002/58, to ensure the confidentiality of electronic communications and related data. It
therefore also constitutes interference with the fundamental rights enshrined in Articles 7 and 8 of
the Charter and is likely to have a deterrent effect on the exercise of freedom of expression, which
is guaranteed in Article 11 of the Charter.
187
It must be emphasised that the interference constituted by the real-time collection of data that
allows terminal equipment to be located appears particularly serious, since that data provides the
competent national authorities with a means of accurately and permanently tracking the movements
of users of mobile telephones. To the extent that that data must therefore be considered to be
particularly sensitive, real-time access by the competent authorities to such data must be
distinguished from non-real-time access to that data, the first being more intrusive in that it allows
for monitoring of those users that is virtually total (see, by analogy, with regard to Article 8 of the
ECHR, ECtHR, 8 February 2018, Ben Faiza v. France CE:ECHR:2018:0208JUD003144612, § 74).
The seriousness of that interference is further aggravated where the real-time collection also extends
to the traffic data of the persons concerned.
188
Although the objective of preventing terrorism pursued by the national legislation at issue in the
main proceedings is liable, given its importance, to justify interference in the form of the real-time
collection of traffic and location data, such a measure may be implemented, taking into account its
particularly intrusive nature, only in respect of persons with respect to whom there is a valid reason
to suspect that they are involved in one way or another in terrorist activities. With regard to persons
falling outside of that category, they may only be the subject of non-real-time access, which may
occur, in accordance with the Court’s case-law, only in particular situations, such as those involving
terrorist activities, and where there is objective evidence from which it can be deduced that that data
might, in a specific case, make an effective contribution to combating terrorism (see, to that effect,
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