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France debates proposed surveillance laws amidst civil society opposition

20 April 2015

A new bill [1] on intelligence gathering, debated this week in the French Parliament has been criticised over its ambiguity, allowing for increased surveillance by the State [2].
Motivated by the protection of national security, as well as territorial integrity, the bill is drafted for the additional purpose of counter-terrorism, counter organised crime and in the interests of foreign policy including within the European Union.

If passed, the bill would strengthen the monitoring techniques of intelligence services as well as the methods and technology currently used in surveillance. By providing a legal framework, the bill aims to expand the spectrum of techniques that can be implemented.
This expansion potentially allows for mass surveillance by a newly established government board of control, the National Commission for Monitoring Intelligence Techniques (CNCTR), who will have the power to investigate and demand classified information for reporting purposes.

Files on those monitored are to be kept for 40 years in the case of adults and 30 years for children. If the person in question is jailed, then files are to be kept indefinitely, neither amnesty nor rehabilitation will lead to removal. In addition, people placed on file will have to notify the authorities of changes of address and of plans to go abroad at least 15 days before departure [3].

A highly controversial aspect of the bill gives unprecedented powers to the Prime Minister who will have the authority to authorise any form of monitoring activity, without authorisation of the court and prior to notifying the CNCTR, who will then have 24 hours to respond [4].

Earlier in the year, Amnesty International France had criticised the proposed creation of this body, as well as the increased powers given to the Prime Minister, stating that it:
"would give the French authorities extremely broad surveillance powers running against fundamental principles of proportionality and legality, which ought to govern all restrictions on the right to privacy and free speech" [5]

By making explicit mention to the attacks in January, the impact study of the bill justifies the use of intercepting electronic communications [6].

"Acts of terrorism perpetrated in France during the month of January 2015 demonstrate the crucial importance in following, as comprehensively as possible, exchanges by means of electronic communications that take place on the national territory relating to terrorist activity. Only such monitoring is likely to enable the early detection of projects and activities of a terrorist nature, and thus enhance the effectiveness of prevention…"

Internet service providers, as well as telecommunications companies therefore can be, by law, required to report any activity deemed suspicious to the relevant authorities [7].
The impact study also details the use of techniques capturing information in real time, and objects fastened to vehicles to obtain specific geolocations.

"[the bill] authorises, for the purpose of early detection of terrorist acts, collection in real time, on the networks of operators of all data, information and documents, communication to people previously identified as threats. Contrary to the details of what it may be… the contents of their communications will be intercepted in any case…"[6]

According to French newspaper, Le Monde, the bill also introduces international surveillance measures, for French nationals suspected of terrorism conversing abroad [8].

Monitoring communications constitutes an infringement of the right to respect privacy recognised in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [9] and Article 7 of the European Charter for Fundamental Rights [10].

The opinion of the French Ombudsman for Rights (Defenseur des Droits) [10] is that the law must be sufficiently clear on what circumstances and under what conditions, it empowers state agencies to use secret and 'potentially dangerous' interference with the right to respect for privacy and correspondence.

"Interference with the right to respect for private life are so serious that they must be based on clear and detailed provisions, especially as technical processes are diversifying and perfect."

The same requirements are posed by the case law of the Court of Justice of the European Union (CJEU), recalled in the recent case of Digital Rights Ireland April 8, 2014 [11] censuring the Directive 2006/24/EC of 15 March 2006 on Electronic Communications[12].

According to news service, Euractiv, the European Commission has refused to comment to the press on the debate in the French National Assembly [13]

The bill will be voted for on 5th May 2015.

Footnotes

[1] Bill no. 2669 on the law relating to intelligence (French)

[2] French surveillance bill draws criticism from web firms and civil liberty groups The Guardian, 13.04.2015

[3] France to strengthen spies' powers in new anti-terror law Radio France International, 12.04.2015

[4] Concern of human rights organizations face a bill designed to give intelligence agencies new powers that are not safe Amnesty International France (French)

[5] France's new intelligence bill would pave the way for extremely intrusive surveillance Amnesty International France

[6] Impact Study on the Law relating to intelligence NOR: PRMX1504410L/Bleue-1 18.03.2015 (in French)

[7] Ce que prévoit le projet de loi sur le renseignement Le Monde, 18.03.2015 (in French)

[8] Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

[9] Article 7 of the European Charter for Fundamental Rights

[10] Avis du Defenseur des droits no. 15-04 Defenseur des Droit, 02.04.2015 (in French)

[11] Judgment of the Court (Grand Chamber) of 8 April 2014 (requests for a preliminary ruling from the High Court of Ireland (Ireland) and the Verfassungsgerichtshof (Austria)) - Digital Rights Ireland Ltd (C-293/12) v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General, and Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and Others (C-594/12)

[12] Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC

[13] Le projet de loi francais sur le renseignement mal embarque (in French)