Will 2015 usher in an era of mass surveillance in France?
by Marie Baleo
France and freedom have a long, intricate, and fascinating history.
To many, the thought of France might bring forth images of Delacroix’s Liberté guidant le peuple, or of the French national motto, Liberté, égalité, fraternité (a direct legacy of the French revolution, incidentally originally followed by… “or death”). Engraved on the pediment of all city halls in the country, the word and notion of liberty have occupied a pivotal position in the collective psyche and in the civic education generations of French children have received. The country has traditionally been regarded as protective of individual liberties and quick to defend said liberties in instances and areas where it deemed them to be in jeopardy.
Today, we are constantly assured that traditional wars have disappeared, and simultaneously ordered not to rejoice, as old wars have been replaced by the much more immediate and evasive threat of terrorism. Until the terrorist attacks of January 2015 on Charlie Hebdo and on the kosher deli in Vincennes, France had remained – relatively – exempt from the wave of attacks and bloodshed which has affected the United States, England, Spain and more in recent years. Accordingly, France had thus far had little reason to give in to what one may call the “Patriot Act trend”, a debatable legal and parliamentary reaction to the ominous threat of terrorism, consisting in tilting the balance between cherished individual liberties and national security ever more in favor of the latter.
It would appear the tide has now turned. A draft law, presented by the Prime Minister before the Assemblée nationale (the lower house of the bicameral French parliament) in April, allows French intelligence services to implement techniques only used by the judicial police until now: collection, transmission and recording of words pronounced privately or confidentially or computer data and real-time localization of a person, a vehicle or an object. This regrettable turn of events is taking place in the midst of generalized indifference: around 30 of the 577 Members of the Assemblée nationale attended the first day of examination of the law, while a CSA poll revealed that the French could hardly care less: 28% had heard of the draft bill and understood its content.
Bear with me through the next pages, and we will see how the current socialist government has pushed for the enactment of what is perhaps one of the greatest threats to individual liberties to ever grace the French legal system.
A direct result of the Paris attacks of January 2015?
In a legislative report authored by MP Jean-Jacques Urvoas (President of the Parliament’s Judiciary Committee), French Interior Minister Bernard Cazeneuve is quoted as saying:
“In a context marked by the existence of a particularly severe terrorist threat, the law on surveillance appears more needed than ever (…) This is about better identifying threats, at a time when only half of all French jihadis are detected before their departure. As shown by the events of January, it is very important to bring those who have committed terrorist acts to justice, but even more crucial to prevent these acts before they occur”.
The attacks of January have created the right context for the bill to be put through an accelerated voting procedure. The Union Syndicale des Magistrats voiced its surprise at finding out that such an important bill was being fast tracked, and called on the government and members of Parliament to put aside the emotions raised by the terrorist attacks of January. Supporters of the draft bill have in fact abundantly resorted to the ominous terrorist threat as an excuse to justify the proposed provisions, as well as the unusual use of the fast track. At first glance, this could seem legitimate. But does it accurately reflect the scope and purpose of the new bill? Let’s take a closer look.
A scope much wider than just terrorism
Under the proposed law, a French intelligence service wishing to use a given surveillance technique must prove and explain that its request is made in order to protect or pursue at least one of the following items:
National independence, territorial integrity and national defense
The major interests of foreign policy and the prevention of any form of foreign interference
France’s major industrial and scientific economic interests
The prevention of terrorism
The prevention of any damage to the republican form of institutions, of collective violence liable to affect national security, of the reformation or continuation of groups dissolved pursuant to article L. 212-1
The prevention of crime and organized delinquency
The prevention of the proliferation of weapons of mass destruction
My mathematical abilities were never stellar, but my calculations indicate that the heroic fight against terrorism amounts to merely 1 in 7, or 14,3%, of the aforementioned goals. Might it be slightly dishonest, then, to present this bill as an anti-terrorist law resulting from the Charlie Hebdo attacks?
As pointed out by Nextinpact, the new list is significantly longer and more detailed than the one previously provided by French law in its Code de la sécurité intérieure, with the notable addition of two very vague goals, “the prevention of collective violence liable to damage national security” and the “essential interests of foreign policy”. It does not take the wildest of imaginations to picture the very diverse interpretations the “prevention of collective violence” might spur. One of France’s most famous counter-terrorism judges, Marc Trévidic, has criticized the manner in which this bill has been presented strictly as a counter-terrorist law:
“I can understand the fact that the current situation requires an increase in intelligence services’ powers, but the draft bill applies to much broader domains, domains defined in a particularly vague fashion”.
Even judicial police officers, represented by their union, the CGT Police, have voiced their anger and fear over the potential threat to individual liberties the broad scope of these seven items represents:
“A left-wing government (!) wants to enact a law which will not just concern itself with terrorism, WMD proliferation or counter-interference, but which will slip into a variety of areas such as “the major interests of foreign policy” and “collective violence liable to affect national security”. What do these categories have to do with the fight against terrorism? What do they have to do with the death of journalists and others due to their religion, or with the death or our colleagues? Who will define the nature of these “major interests” or decide what must be considered as “collective violence”?”.
A bill that legalizes particularly invasive and wide-ranging surveillance techniques
As you may know, IMSI catchers are all the rage these days. Earlier this month, Nótt Magazine reported on Norwegian newspaper Aftenposten’s findings of widespread political espionage in Oslo, based on the discovery of several IMSI catchers. Small enough to fit into a regular suitcase, IMSI catchers are false base stations that allow their owners to obtain the IMEI number of any connected cell phone and to listen to phone calls placed by and to any cell phone in a 500-meter radius.
Though technically illegal until now, IMSI catchers are believed to have been commonly and generously used by intelligence services in France for years, and notably by the DGSE (foreign intelligence service, purported to have manufactured an IMSI catcher of its own) and DGSI (counter-espionage service, currently in possession of half a dozen “suitcases” according to the JDD). Even the judicial police possesses toys of its own. But when Jean-Jacques Urvoas, President of the Parliament’s Judicial Committee, spoke of his interviews with French secret services, he recounted: “When I asked them, they all told me that they did not own devices they were not legally allowed to use”.
The price of IMSI catchers has been divided by ten in the past decade. While most IMSI catchers available on the market originate from Israel or Russia, the Journal du Dimanche (JDD) reports that French industrial giants Thales and Airbus are working on catchers of their own. Right in time for the legalization, by our contentious draft bill, of the use by intelligence services of IMSI catchers, subject to the pursuit of one of the seven vague goals mentioned above. All six French services will be provided with IMSI catchers.
A bill that aims to facilitate the apprehension of “future terrorists”
The draft bill proposes to collect intelligence not just on suspicious individuals, but on any person who has been in contact with said individuals. By analyzing their contacts and relations and the frequency of communication, the draft bill hopes to allow intelligence services to detect specific profiles before they do any harm. Incidentally, the bill extends the duration of the conservation of data collected for intelligence purposes to 5 years.
Interior Minister Bernard Cazeneuve has stated:
“Citizens in democracies expect services from their State, not only that they bring the perpetrators of terrorist acts to justice with the utmost severity, but above all that they prevent such acts. This is the object of the tools we mention, the use of which will be limited by strong precautions. These are algorithms currently used by Internet actors to purely commercial ends and without any control”.
Show of hands if you were just reminded of the terrible Tom Cruise movie Minority Report. While the fight against terrorism is obviously a necessity and the protection of citizens’ security a priority, there are philosophical hurdles to the idea of apprehending an individual for an act not yet committed. The problem with intent is that it is just that: intent. There is technically no way of being absolutely sure the individual was effectively going to carry out the act in question.
Behold, the “black boxes”
One of the more salient features of the draft bill is the possibility afforded to intelligence services to order service providers to set up so-called “black boxes”. These devices, which combine hardware and software, will use algorithms aimed at detecting specific profiles deemed suspicious (connections, content, online activities). These algorithms will be applied to all data circulating in these networks. As explained by Le Monde, this means authorities can force Internet service providers to detect, by automatic treatment, suspicious series of connection data. The government argues this will allow quasi real-time detection of individuals using schemes typically used by terrorists and jihadis to transmit information, and will thus help prevent impending terrorist attacks.
This might seem slightly invasive, but not to worry: the government guarantees that our privacy will not be endangered, as the collected information is strictly anonymous. The content of the messages will not be read, as surveillance will only regard metadata, such as the origin or sender of a message, the IP addresses of websites visited by the suspicious individual, etc. Anonymity will only be lifted by agreement of the Prime Minister and in the event of “the revelation of a terrorist threat”. Does it matter that the CNIL has already pointed out the ease with which one can identify an individual based on a small number of these “anonymous” elements? No. Additionally, because human resources are limited and the humongous quantity of collected data cannot be thoroughly and completely analyzed, the government, ever a fine logician, argues there can technically be no mass surveillance. With this anonymity spiel, the government wants us to believe that our privacy is protected. As Rue 89 remarks, this is similar to claiming Google is not conducting mass surveillance by reading all the emails exchanged through Gmail, on the grounds that computers, not people, are doing said reading.
The same arguments were used by proponents of Prism, who disputed the qualification of mass surveillance based on the fact that nobody was reading the collected data, which was merely handled by algorithms. Interviewed by Silicon, Tristan Nitot, formerly of the Mozilla Foundation, declared that:
“Contrary to what the NSA does, one will not be collecting all of the data, but one certainly is going to watch everything! In fact, this marks the beginning of mass surveillance.”
In the legislative report mentioned above, Interior Minister Bernard Cazeneuve argues that the selected profiles will be few and anonymous, and that the algorithm will apply “extremely selective criteria”, while Defense Minister Jean-Yves Le Drian states that any change to the algorithm will be subject to review. A source tells Le Figaro that if the algorithms in use yield too many results, they will be adjusted in order to allow for finer detection. These black boxes will be installed for 30 days, but this initial time period may be renewed as often as necessary, subject only to a new procedure and a new request, so that the black box may virtually operate constantly.
Patrick Cahez of Mediapart is painfully correct when he points out that the perpetrators of the Paris attacks of January 2015 were well-known of the police and were followed and spied on, and that listening in on all of the population’s conversation and entering their domicile to plant bugs might not be as useful as we appear to think.
The protection of journalistic sources in jeopardy
Additionally, France-based NGO Reporters Without Borders has criticized the draft bill, claiming that the permission granted to French intelligence services to spy on communication threatens the protection of journalistic sources. Its General Secretary Christophe Deloire declared:
“The government must reinstate protection of sources’ secrecy by putting the judge back in the loop. It is essential that a “journalistic exception” to the surveillance regime proposed by the bill be provided for.”
Reporters Without Borders rightfully points out that although the Criminal Code does create specific protection for individuals covered by a specific status (such as, inter alia, journalists), no such exception is provided for in the proposed intelligence legislation.
But journalists are not the only professions threatened by the bill: indeed, the Paris Bar has voiced its concern over the lack of protection of doctors, journalists and lawyers, “whose confidential data can from now on be freely collected”.
A much-needed legal framework for surveillance operations?
In its Vetter v. France decision of 2005, the ECHR sentenced France for placing microphones in an apartment without operating on sufficiently precise legal grounds. In this regard, there was arguably a legal vacuum of sorts, which this draft bill proposes to fill. Le Monde quotes a high-rank police officer specialized in surveillance, who considers the bill “a considerable advance”.
All hail, the modernization and improvement of French law! If this bill merely legalizes existing practices, what is the problem? The problem is not the techniques mentioned in the law, which have been used by intelligence services for decades. Instead, the problem is the lack of democratic, judicial control over instruments and methods which, although they are arguably necessary to the protection of national security, can quickly become a threat to individual liberties, and a shortcut to a mass surveillance program. Court control, conducted by independent judicial magistrates, is the guarantee that this fine, subjective line is never crossed, the promise of an independent arbiter between security and freedom, working to protect citizens’ rights. To enact this law amounts to dismissing this judicial control definitively and discarding the guarantee of individual liberties.
Mass surveillance, outside of court control
A new administrative authority, the Commission nationale de contrôle des techniques de renseignement (National Commission for the Control of Intelligence Techniques, or CNCTR), will be created, and will include two (current or retired) magistrates of the Cour de Cassation (highest civil jurisdiction), two (current or retired) members of the Conseil d’Etat, two members of the Assemblée nationale (MPs from both the majority and the opposition) and two members of the Sénat (the second house), as well as a technical expert specialized in electronic communications.
Generally, all requests aimed at surveillance of individuals will be transmitted by the relevant Ministry (Defense, Interior, or Finance) to the CNCTR. The written request presented to the Commission will include information on the aim and justification of the operation and the targeted individuals, premises or vehicles. The CNCTR will be in charge of verifying that the techniques the services are asking to use are proportionate and justified, and will have 24 hours to turn in its opinion to the Prime Minister. Nextinpact highlights that in the event the CNCTR is too busy juggling its heavy workload and unable to address this specific request, “it shall be considered that an opinion has been rendered”, says the draft bill. Silence is consent, I guess?
Additionally, and most importantly, the CNCTR’s decision is merely an opinion and the Prime Minister may choose to disregard it and proceed anyway. Even if the CNCTR is violently opposed to the proposed operation and techniques, it may only submit a “recommendation” to the Prime Minister and the intelligence services. In return the Prime Minister must keep the Commission informed of what it intends to do. Additionally, if it really, really does not agree, the CNCTR can seize the Conseil d’Etat by a majority vote.
However, in cases of “absolute emergency” caused by a direct threat or the belief that ulterior action will no longer be available, intelligence services may proceed without the CNTCR’s authorization, as long as the latter and the Prime Minister are immediately informed.
Finally, any citizen who believes he is being spied on may seize the CNCTR provided he or she can demonstrate legal standing. The rightfully paranoid citizen may also seize the Conseil d’Etat. Both organs may order the destruction of the collected information and compensate the plaintiff. This, in short, is the scheme provided for by the draft bill. What’s wrong with this picture?
There was a time, as a first-year political science student, when I briefly considered learning the Constitution by heart. This was long ago, and I have since forgotten close to everything I have ever learned in college. However, I am pretty sure article 66 of the Constitution of the Fifth Republic goes something like this:
“The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute”.
Notice how the drafter of the Constitution made it very clear it is the judicial branch that is in charge of protecting individual liberties, and not the executive branch, which is primarily concerned with itself and being re-elected.
Indeed, the French Constitution, drafted in 1958 by Michel Debré under the driving force of the Général de Gaulle, creates a system of séparation des pouvoirs (balance of powers) between the executive, legislative and judiciary branches, largely inspired by the tripartite system theorized by Montesquieu in L’Esprit des lois (The Spirit of the Laws, 1748). For Montesquieu, all three branches must balance each other and may mutually stop each other from breaching their respective boundaries. This system prevents the potential concentration of power in the hands of a single ruler or monarch. Montesquieu argued that “the independence of the judiciary has to be real and not merely apparent ”.
Consequently, it is understandable that a draft bill submitted by the government, aiming to give the administrative police increased powers, subject to the control of a purely administrative authority and of the highest administrative court, without ever providing for the intervention of an independent judicial judge, might raise questions as to its constitutionality.
Laurence Blisson, Secretary General of the Syndicat de la Magistrature, told L’Express:
“If (the CNTCR’s) opinion is not followed, it may seize the Conseil d’Etat, only if a majority votes in favor of this recourse. If a citizen seizes the Conseil d’Etat, he may not resort to a lawyer to defend him. Even if the Conseil d’Etat invalidated a procedure, the secret défense (military confidentiality) would prevail and we would never know which technique had been used or what information had been collected. This is a law which refuses any right of say independent from the executive branch, and thus any outlook independent from the political.”
In a report on surveillance authored in 2013, MP and President of the Parliament’s Judicial Committee Jean-Jacques Urvoas wrote that “the judicial world and the intelligence world appear irreconcilable”. This view and this draft bill are part of a broader trend of loss of control by the judicial branch. For instance, administrative acts forbidding an individual from exiting the French territory are now decided and issued by the services of the Prime Minister, while the blocking of jihadi websites has also fallen outside the scope of court control. Although this has partly been explained by the impractical length of the judicial process, this argument is not necessarily relevant, as a request made by a member of the administration to the Prime Minister’s services can easily take just as long as court proceedings, which are evidently much speedier in these specific emergency cases.
A useless law?
Xavier Nogueras, a French criminal law attorney, told France Inter:
“Where does terrorism start? For years, lawyers have been contesting the criminal offense provided for by the French Criminal Code, an offense based on intent which consists, long before the act, in apprehending and punishing a person based solely on their potential intent to one day carry out said act. This is a serious problem. In France, people are charged with “association de malfaiteurs en vue de préparer des actes de terrorisme” (criminal conspiracy with a view to preparing terrorist acts). There is never an actual act (except Kouachi, Coulibaly), this is a criminal offense which allows for the apprehension of a person who still has the option of not acting. Authorities are looking to give themselves a legal framework in order to be able to use the data they collect without difficulty, but I believe this will not help in tackling terrorism. It won’t allow for better apprehension and stopping of terrorists. Jihadis and terrorists will adapt, just like all delinquents and criminals have adapted before. This draft bill is not a way to globally solve the problem.”
Terrorists will adapt. Indeed, Rue 89 questions the efficiency of the measures contained in the draft bill and highlights the numerous, free and easy ways of communication securely on the Internet (Tor browser, GPG/Enigmail, Proton Mail, VPN, …). It is no secret that anyone can easily hide on the Internet.
What lies ahead
The strong reactions of several organizations have introduced a growing public debate regarding the draft bill. These discussions have highlighted the damage the bill would inflict upon the protection of individual liberties, and how terrible a tool it would be to put in the hands of a future government, with the 2017 elections and the prospect of high scores for the extreme-right party Front National looming on the horizon. Thus, judge Charles Prats told France Inter that “highly efficient surveillance tools outside of strict judicial control can raise serious problems depending on the evolution of the political context in our country”.
In a surprising turn of events, French President François Hollande announced on April 19 that he will be seizing the Conseil Constitutionnel to request a ruling on the constitutionality of the draft bill – something the opposition would likely have ended up doing anyway. For now, the French are left to wait for the opinion of the Conseil on the constitutionality of this law and for its potential enactment to identify the right recourse to wield against it.
The Merriem Webster dictionary defines the “police state” as:
“A political unit characterized by repressive governmental control of political, economic and social life usually by an arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures”.
The emphasized passage is an uncannily accurate summary of the previous developments.
The public evidently has an imperfect perception of the exact nature and degree of the current threat to national security. Thus, the assessment of whether the balance between individual liberties and national security is justified in momentarily veering more towards the latter than the former is complicated and subjective. Draft bills are not a sexy topic: people are overwhelmingly simply not interested. But it is worth remembering that our laws are the direct reflection of our ideas and ideals. Our laws reflect the kind of democracy we want to live in, the kind of system we want, the idea we have of our individual liberties and, most of all, the value we assign these liberties.
The main French union representing judicial judges, the aim of which is to protect the independence of the judiciary authority : http://www.union-syndicale-magistrats.org/web/p156_usm-le-syndicat-des-magistrats.html
 Terrorism is defined by the French Criminal Code (article 421-1): (http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006070719&idArticle=LEGIARTI000023712838&dateTexte=20111204).
 As Nextinpact explained thoroughly and brilliantly: http://www.nextinpact.com/news/93542-le-projet-loi-sur-renseignement-explique-ligne-par-ligne.htm
 Freely translated from http://fr.rsf.org/france-projet-de-loi-sur-le-renseignement-24-03-2015,47723.html
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