The Council of State refuses to suspend the health pass

The health pass was attacked by the association La Quadrature du Net. The Council of State refused to suspend this device, considering that it did not seriously and unlawfully violate human rights.

Is the health pass detrimental to freedoms? No, answers the Council of State. In its order issued on July 6, 2021, the highest body of the French administrative order rejects the procedure brought by La Quadrature du Net, on the grounds that this device “ does not seriously and unlawfully infringe the right to respect for private life or the right to protection of personal data “.

The health pass is a recent mechanism, put in place since June 9 in France as part of the coronavirus pandemic. It is a document, available in paper or in a digital version, allowing access to gatherings or events that bring together a large number of people, demonstrating that one is not “at risk”. and that we are therefore not going to generate a cluster of patients.

This health pass can include either proof of vaccination, a negative result from a recent test (48 hours or 72 hours for border control), or an indication that you have recently recovered from Covid-19 (with proof of at least fifteen days and less than six months). The pass, which is now standardized at European level, contains personal and medical data.

Indeed, the document includes for example the first name and the last name, the date of birth, the vaccine used (in the case where vaccination is preferred) or the date of the last injection – this is why moreover ‘it is not recommended to share your health pass on the net, including QR codes, which can be read with a dedicated application.

The TousAntiCovid “notebook” is used as part of the health pass. // Source: TousAntiCovid

For La Quadrature du Net, which sent its appeal to the Council of State on June 11, this pass ” discloses civil status and health data unjustifiably »And requires people to show that they are holders of the health pass by presenting an identity document. However, it is this consequence that the association specialized in the subjects of individual freedoms in the digital world wanted to attack.

The association considers that the design of the health pass encourages holding either an identity card or a passport, while legally it is not compulsory to have this type of document. Identity can indeed be proven by any means, including oral testimony. In fact, the absence of this type of document in everyday life can nevertheless prove to be a source of complication.

Therefore, La Quadrature du Net considers that this insidious incitement to have to present an identity document to verify the validity of the health pass leads the population in fact to the controversial TES file (which groups fingerprints as well as various personal data in a centralized database) and to the new electronic identity card.

The other big issue was reading the 2D code, which “ allows anyone, always so easily, to access very sensitive health data but perfectly useless for the operation of the pass: date of taking the vaccine, name of the vaccine, past contraction of the disease … “. For La Quadrature, this information is useless, absurd and contrary to the decree and the law governing the health pass.

A health pass limited to few events

But the Council of State did not hear it that way. In the context of summary proceedings, that is to say in emergency and not an examination on the merits, he considered that the action brought by La Quadrature du Net is unfounded: the sanitary pass s ‘proves to be limited to a reduced number of events and, moreover, its operation is such that the data remains on the smartphone or the paper of the individual.

Thus, the summary judge “ notes that this device is not required for daily activities or the exercise of certain fundamental freedoms “. It is only requested for large gatherings, which are more sensitive due to the risk of the virus spreading, such as concerts, stadiums, festivals, fairs, exhibitions or trips to and from the metropolis.

On the other hand, people are not required to present the health pass if they go to the cinema, the theater, the restaurant, shops, work or various places of daily life. It is also not required for the exercise of certain freedoms, such as the right of assembly, demonstrations or the exercise of worship. In short, not everyone can demand to see the health pass.

A concert is an event in which the health pass is required during the coronavirus pandemic. // Source: Thiago Miranda – Pexels

Another element taken into account by the summary judge: it is not mandatory to use the digital version of the health pass. Individuals have the option of opting for the paper version, by printing it on a sheet. In addition, the operation is done locally, both for its conservation (on the user’s smartphone) and its control (via a dedicated application: TousAntiCovid-Verif).

The digital health pass is based on the conservation and control by everyone, on their own mobile phone, of some of their health data. This choice limits the collection and processing of health data on national bases and reduces the risk of hacking or error. In addition, the verification of supporting documents by the TousAntiCovid Verified application is also carried out at the local level. », Writes the Council of State.

More generally, the highest administrative body notes that the health pass ” responds to a reason of public interest for the preservation of the health of the population and that the data collected is limited and appropriate in relation to the objectives pursued (principle of minimization) “. Finally, the health pass is not intended to last: at European level, it must work for a while.

If the Council of State does not suspend the health pass, criticisms remain despite everything on various aspects of the device, in particular technical on the verification process the digital signature of the pass. For example, the CNIL was concerned about a ” habituation phenomenon To this type of device. It also noted some weak points in its implementation.

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