RUTHFULLY YOURS

• Critics say the oversight role is illusory and that the law effectively centralizes surveillance power in the hands of just a few individuals.
• “A law that will change our society should have been debated. Why was there no public hearing? Why does the judge have no place in the monitoring procedure?” — Laurence Parisot, former head of Medef, the largest business lobby in France.
• “We cannot accept a law that notably authorizes the establishment of systems that not only locate people, vehicles or objects in real time, but also capture personal data, based on what the drafters of the law call, vaguely, ‘the major interests of foreign policy,’ ‘the economic, industrial and scientific’ interests of France, ‘the prevention of collective violence,’ or ‘the prevention of crime and organized crime.'” — Pierre-Olivier Sur, head of the Paris bar association.

The French parliament has approved a landmark intelligence-gathering law that gives the state sweeping powers to spy on citizens.

The government says the new law — which was fast-tracked after the Charlie Hebdo attacks in Paris in January — is aimed at preventing Islamic terrorism.

But privacy groups say the law, which has been referred to as “the French Patriot Act,” is so vague and intrusive and centralizes surveillance power to such an extent, that it poses an unacceptable threat to civil liberties in France.

The law on intelligence-gathering was adopted in the National Assembly, the lower house, on May 5 by a large majority: 438 in favor, 86 against and 42 abstentions.

The bill has enjoyed broad support from France’s two main parties: the ruling Socialist Party, led by French President François Hollande, and the opposition center-right Union for Popular Movement (UMP), led by former French President Nicolas Sarkozy.

The law now goes to the Senate, where it is expected to pass, and could enter into effect as early as July.

The 100-page law (PDF here) — which updates a directive from 1991, before the Internet and mobile telephones became ubiquitous — sets out the legal framework within which France’s six different intelligence agencies can gather information.

The law allows French authorities to monitor the digital communications of anyone linked to a terrorism investigation, and it also authorizes surveillance if it is deemed necessary to protect “national independence, territorial integrity and national defense.”

More controversially, however, the law goes far beyond the prevention of terrorism and includes vague language that critics say is confusing and opens the door to future abuse. The law states, for example, that surveillance is allowed if it supports “major foreign policy interests,” promotes “industrial and scientific interests,” and/or prevents “attacks on the Republican form of [government] institutions.”

The law also allows French intelligence agencies to install so-called “black boxes” (boîtes noires) attached to servers to enable the bulk collection of metadata. Moreover, the law allows government spies to place cameras and microphones in private homes and install “keylogger” software to record real-time key strokes on targeted computers.

Such monitoring will not require prior authorization from a judge, and Internet service providers (ISPs) and telephone companies must hand over data to the government upon request. French authorities would be allowed to keep recordings for one month and metadata for five years.

The law establishes the National Commission for Control of Intelligence Techniques (Commission nationale de contrôle des techniques de renseignement, CNCTR), a nine-person committee that the government says will oversee the surveillance operations, which are led by the prime minister.

But privacy groups say the establishment of the CNCTR is meaningless because it will not be invested with any real power. The commission’s remit is limited to providing the prime minister with non-binding advice and it cannot overrule him.

The CNCTR can refer concerns to France’s highest administrative court, the Council of State (Conseil d’État), which does have the power to order an end to surveillance. But critics say the CNCTR’s oversight role is illusory and that the law effectively centralizes surveillance power in the hands of just a few individuals.

In a speech to Parliament on April 13, French Prime Minister Manuel Valls defended the law, which he said is “strictly focused on preventing serious threats.” He added: “The criticisms and postures that evoke a French Patriot Act or a police state are irresponsible lies, given the threat environment that we face.”

An opinion poll published on April 13 found that nearly two-thirds (63%) of French citizens were in favor of restricting civil liberties in order to combat terrorism. Only 33% said they were opposed to having their freedoms reduced, although this number increased significantly among younger respondents.

In any event, the bill, which some are calling the “French Big Brother,” has run into intense opposition from business leaders, journalists, far-left political parties, civil liberties groups, lawyers and Internet activists.

Protestors in France, on May 4, 2015, denounce the surveillance bill that was passed into law the next day. (Image source: Amnesty International France)

Laurence Parisot, the former head of Medef, the largest business lobby in France, has called the new law a “freedom killer” (liberticide). In an April 17 interview with L’Obs, she said it was “draconian and dangerous,” and added:

“I am appalled by this act. A country like ours cannot deny its fundamentals: individual freedom and the protection of individuals. I find it impossible to abandon these principles. Yet this is what is happening with the bill on intelligence. It will change our society. This is not the first time that I am fighting against a repressive law. The French cannot live in a surveillance society.

“It is appalling that no debate has taken place. A law that will change our society should have been debated. Why was there no public hearing? Why does the judge have no place in the monitoring procedure? The speed at which the government wants this bill to be passed, with the accelerated procedure, is a serious mistake.

“Moreover, it should be noted the silence of intellectuals about this law. Where are they? What are they doing? Why do they not speak? You cannot hear them and yet we need them. Ironically, yesterday [April 16] was the anniversary of the death of Alexis de Tocqueville. Is this a sign?

In a May 3 interview with Le Figaro, the head of the Paris bar association, Pierre-Olivier Sur, denounced the new law as a “state lie” which poses a “serious threat to civil liberties.” While President Hollande claimed on television that the law was “an essential text for the fight against terrorism,” in reality “it will also apply in many other areas,” he wrote.

Sur expanded his criticism of the law in an essay published by Le Monde on May 4. Sur wrote:

“Supporters of the bill under discussion argue, against all evidence, that it applies only to the fight against terrorism, playing on our legitimate fears, expecting us to close our eyes to the unacceptable general provisions.

“We cannot accept a law that notably authorizes the establishment of systems that not only locate people, vehicles or objects in real time, but also capture personal data, based on what the drafters of the law call, vaguely, ‘the major interests of foreign policy,’ ‘the economic, industrial and scientific’ interests of France, ‘the prevention of collective violence,’ or ‘the prevention of crime and organized crime.’

“In all such matters, it must remain a court judge who can instantly give, not a mere opinion, but a formal authorization or a refusal, based on the evidence and context that are brought to him. This is guaranteed by Article 66 of the Constitution which seems to be overlooked by the new text.”

In a 23-page analysis, the Syndicat de la Magistrature, the second-largest trade union for judges in France, agrees. It said the new law effectively overturns more than 200 years of civil liberties protections in France. It wrote:

“The heart of the debate is about protecting individuals against the public abuse of power, as conceived by the drafters of the 1789 Declaration of the Rights of Man and of the Citizen. The new intelligence-gathering law is primarily about protecting the work of intelligence agents; protecting the freedoms of citizens is only a secondary consideration. The reversal of fundamental principles is shocking.”

In an apparent bid to allay public concerns, President Hollande has now pledged to submit the law to the Constitutional Council (Conseil Constitutionnel), the highest constitutional authority in France, before it enters into effect. If the council deems that parts of the law violate the constitution, it may demand changes to the text to bring it into line.

Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute. He is also Senior Fellow for European Politics at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group. Follow him on Facebook and on Twitter.