Surveillance in France following the terrorist attacks in Paris: Nothing new under the sun

Introduction

The terrorist attacks that occurred in Paris between the 7th and the 9th of January 2015 have been called the “France’s 9/11” by certain international and French newspaper. If, from an operational point of view, these attacks largely differ from what happened in the United States in 2001, from a legal standpoint, however, similar consequences could be expected, especially with regard to surveillance. It is at least what arose out of the speech of the French Prime Minister, where he mentioned the Patriot Act enacted by the United States after 9/11. The French government has indeed undertaken to reform several aspects of its national legislation in relation to surveillance. A new law should be enacted within the next few weeks. Despite the deceiving name of its title – “Law on Intelligence” – the government’s intent is univocal. Its purpose is to put in place a system of mass surveillance. However, the current fuzziness in the area of surveillance (1) leads to wonder what genuine impact, if any, the new legislation will have on French citizens (2).

1. Fuzzy Surveillance in France

Following the terrorist attacks in Paris, the French Prime Minister had contemplated the potential enactment of a French “Passenger Name Record” (“PNR”) system, designed to broaden the possibilities to collect, process and transfer personal data. Five months later, whereas a bill is currently discussed before the national Parliament, there are no traces of such system. The reason might be because it already exists.

Furthermore, the Prime Minister also mentioned that France was envisioning the adoption of a “French Patriot Act”. Will France go as far as the US? Or isn’t it already the case? After all, when authorized by the Prime Minister, police officers are currently allowed to collect any electronic data and to intercept any electronic communications for the purpose of identifying and preventing – in real time – potential threats to the national security. This legislative arsenal, which entered into force on 1st January 2015, did not prevent terrorist attacks to occur in Paris. Thus, although the reinforcement of surveillance did not work in the first place, further legislative steps are being taken in this direction.

2. From Surveillance to Mass Surveillance: A Real Impact?

By and large, the Law on Intelligence is aimed at protecting the major interests of French foreign policy, as well as the economic, industrial and scientific major interests of France, and the safety of the Republic. This catchall phrasing may explain the presence of the adjective “mass” before “surveillance”. But, further than that, it is hard to see any change.

Beware! One might say. The National Commission controlling intelligence techniques will replace the Commission controlling interception of telecommunications. This new body will process all intelligence requests except, of course, in emergency and “absolute” emergency situations. Then, one may wonder what will be its actual role, if any? In addition, citizens will be able to seize the French Administrative Supreme Court if they consider to be unjustly spied on. Well thought! But, how will citizens know that they are being spied on? I have no idea.

On top of that, the use of IMSI-Catchers (a telephony eavesdropping device used for intercepting mobile phone traffic and tracking movement of mobile phone users) by authorities will be lawful. However, the latter already use this tool outside any legal frame.

So, what’s new? The Law on Intelligence should enable the automatic process of metadata through an algorithm designed to detect suspicious behaviors on the Internet. Those metadata are supposed to be anonymous. But, paradoxically, they should also enable the identification of suspects by the authorities. How is it possible? Again, I have no idea.

Beyond the fact that Internet service providers will have leeway to identify what constitutes metadata and what is part of communication contents, I find hard to believe that this algorithm was specifically created for the purpose of this Law. Put another way, it is probable that the Law will merely make lawful an instrument that was unlawfully relied on by authorities. In this respect, the explanatory memorandum of the Law on Intelligence acknowledges the current legislative loopholes, thus implying the de facto existence of the mechanisms it purports to put in place. Therefore, it is doubtful that the Law on Intelligence will actually have any impact on citizens’ surveillance. It will, however, legitimize procedures and techniques that already existed. This is what French media reveals by denouncing a false transparency campaign led by the government through the enactment of the Law on Intelligence.

Conclusion

The Law on Intelligence will not clarify the area of surveillance in France. It will remain as obscure as it was. At first glance, I was thinking that this reform would at least make citizens aware of the fact that each of their clicks is being watched. But, on further examination, it appears that 27% of French nationals have not heard anything about this Law. And 40%, if they have heard about it, are incapable to describe its objectives and contents. It is in fact not surprising since the vocabulary used in this Law remains largely unknown and unexplained to the population. The question is then whether it is on purpose?

-- By ArthurMERLEBERAL - 05 Mar 2015