Paris, 30th September 2015 — The review of the bill related to international electronic communications surveillance measures will insidiously start on the 1st October 2015. It can already expect a bright future, made of flash reviews and hurried debates. After the censorship by the French Constitutional Council, which cut off its general approach on international intelligence, this text claims to fill the void and provide “key progress”: the regulation of foreign intelligence activities.
1The OLN gathers the Cecil">Joint communiqué from the Observatoire des Libertés et du Numérique (Freedoms and Digital Observatory)
The OLN gathers the Cecil, Creis-Terminal, the Human Rights League, the Syndicat de la magistrature, the Syndicat des Avocats de France et La Quadrature du Net.
In terms of regulation, the bill thoroughly develops the French government’s mighty powers concerning surveillance outside its national borders. Large scale international espionage is considered as an unquestionable need and thus control is unimaginable: under the modest prompting of the French Constitutional Council, the drafters of the text barely obliged by dressing it up with some distant and non-binding limitations.
The new bill, a version on steroids of the 24 July 2015 law, grants the Prime Minister power to authorise the surveillance of communications sent or received from abroad. The new article 811-3 from the Interior Security Code2coming from the Surveillance Law has laid the foundations for massive interventionism, through a mix of preventive action against organised crime, terrorism, defence and promotion of economic interests, support for foreign policy, surveillance of dissenting movements, any of which could be used as an excuse for spying on anyone due to their ideas or their surrounding’s, that could hypothetically be a potential threat to the “fundamental interests of the Nation”.
Appealing to any of these large and vague criteria will be enough to trigger mass data collection of logins and communications, without any regard to borders, or the target’s nationality. Moreover, this activity would be done under the sole supervision of the executive. The text allows departments to lead targeted surveillance, and to massively collect login data and communications from “geographic areas, organizations, individuals or groups of people”. In short, a general license to spy. In doing so, enormous stocks of data will be generated, available for years, even up to 8 years for encrypted data…
Just being abroad will be reason enough to disregard the protection guaranteed by the rule of Law (as well as any minimal measures included in the 24 July 2015 law), even for so-called “protected professions” or for people using login data or numbers linked to France. Indeed, while they are in principle excluded from international surveillance, they could be thrown into the jungle of international espionage just by hypnotizing that they could be a threat.
The new National Commission on the Control of Surveillance Practices will only be symbolic, as it does not give preliminary advice, thus being limited to control a posteriori. Additionally, it is interesting to note that the Commission is chaired by a former member of the SGDN, the General Secretariat for National Security and Defence. As such, the Commission’s room for manoeuvre will be firstly framed by the Prime Minister, through specifying the definition of interception traceability technology and methods for the centralisation of collected data. The Commission will then be presented with faits accomplis on authorised mass data collection, and of course, being kept in the dark regarding existing information or practice exchanges between the French intelligence services and their foreign counterparts. There is no doubt at all that the control mechanism — through a system of double non-binding recommendations to the Prime Minister and to a referral to the Council of State — will actually be an illusion, regardless of whether it is activated out of own-initiative or by individuals concerned.
The fast-paced and low-profile exam of this bill will not avoid attracting the attention of Members of Parliament and citizens, who have noticed the swing in favour of international surveillance and the threat to democratic principles in the law of 24 July 2015. Our elected representatives must reject this bill, and the government must open up a real public debate on the race to international surveillance. That’s what our democratic society needs now.