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French State of Emergency: Overbidding Mass Surveillance

Paris, 21 July 2016 — Once again. The State of Emergency in France has been extended until January. In reaction to violence shaking the country and with the presidential election of 2017 only a few months away, political leaders are indulging an ignominious orgy of security-driven policy. Not satisfied with merely prolonging the state of emergency, lawmakers have also amended the 2015 Intelligence Act passed last year to legalize domestic mass surveillance.

It is hard to believe that only 48 hours have passed since the bill was sent to the French National Assembly. With incredible speed, in the middle of summer, the Committee on Legal Affairs of the French Senate has given carte blanche to rapporteur Michel Mercier (UDI - centre-right wing and former Minister of Justice) to erase so-called "rigidities" in the Surveillance Law adopted last year.

The provision, much criticised during the parliamentary debates at that time, provides for real-time scanning the connection data of individuals suspected of terrorist activities.

As soon as of the November attacks, with ink on the Surveillance Law not yet dry, an official for the Ministry of Interior was explaining that with lightened oversight procedures, "by cross-referencing data with an already-known very powerful algorithm, we could be able to monitor those 11 700 persons [in the terrorist watchlist] in real time"1.

Then, again according to Le Monde, during the previous National Council of Intelligence last January, the decision was taken to "put under surveillance all the communication data of the 11 700 persons with a S-File linked with radical islamism".

Until now, this form of surveillance targeted only individuals who had been "identified as a [terrorist] threat". But now, in accordance with this amendment, the code of national security stipulates that an individual has to merely be identified as "likely to be related to a threat" or to belong to "the entourage" of individuals "likely related to a threat", to have his or her metadata analysed in real time, and for four months, by intelligence services.

Despite the vagueness of the legalese, it is fairly clear that several dozens, hundreds or even thousands of persons are directly concerned, rather than just the 11 700 individuals who are already on the "S" watchlist. This severe extension of the scope of this provision is all the more shocking considering that in late May, testifying before the parliamentary investigation committee on 2015 terrorist attacks, François Delon, president of the CNCTR, said that this technique [of surveillance in real time] " was beginning to be applied, but only on a small group of people." He also repeated that the number of interceptions of communications (real time surveillance of both metadata and content of communications) was much lower than the authorised quota of 2700 individual and simultaneous wiretaps (covering both telephone and Internet lines and including all the duties of intelligence agencies, not just terrorism). Delon then insisted that the quota was "sufficient".

And yet there we are. Two months later, in less than 48 hours and without any real debate, the provision that was supposed to be a relatively targeted measure brutally shifts towards large-scale, suspicionless surveillance. In the short run, it feeds the political strategies of a few irresponsible people seeking exposure. In the long run, it could come to epitomise the mismanagement of security and methodical destruction of the rule of law, to which nearly all parliamentarians consented to vote in the past two years.

Besides prolonging the state of emergency, the law as adopted also changes the regulations on house searches for digital data. Censured after a decision of the French Constitutional Council last February, those searches can now resume (without anyone knowing what will happen to the enormous data collected during the first three months of the state of emergency).

Tuesday evening, as an anchor on a news channel was asking a representative of far-right party (not short on crazy proposals) whether carrying fire guns should be legalised "for all citizens", MP Isabelle Attard was uttering these words at the National Assembly:

We have witnessed, since the night of Thursday to Friday, a security-driven overbid as we have never seen before. It has been a race to the more months of state of emergency prolongation, all the way up to making it permanent. More weapons, more war, more mass surveillance, more prison, more preventive confinement, more internment camps.

The minutes of the debate reports that to this sentence, "several MPs from The Republicans (conservative party)" answered: "So what?".

So? So we repeat what Philippe Aigrain wrote here on Tuesday: that those who want to resist the mechanics of violence will have to "keep ploughing the soil of the possible, while it is the very idea of politics that others are burying."

  • 1. See the anonymous official source quoted in the article of the French newspaper, Le Monde on the 19 November.