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French surveillance law passes National Assembly, but it's not the last word

By Jean-Paul Marthoz/CPJ EU Correspondent on May 7, 2015 12:50 PM ET

Until the last moment the opponents of a very controversial French intelligence bill tried to be heard. On Monday May 4 on the eve of the vote, activists kept calling deputies to convince them to reject the bill. They had no chance however, since the Socialist government could count on a solid majority from both mainstream left and right at the National Assembly, the lower house of the Parliament. The bill was swiftly and overwhelmingly adopted on Tuesday afternoon with 438 for, 86 against, and 42 abstentions. It will now be sent to the Senate where, despite the chamber being dominated by the center-right opposition, it is not expected to face significant hurdles. "It should be on the statute books by July ," BBC Paris correspondent Hugh Schofield predicted.

The bill was initiated last year but its discussion intensified after the Charlie Hebdo and Hyper Cacher killings in Paris in early January, which left 17 people dead, including eight journalists. Citing the need to vigorously address the threat of jihadism and terrorism, the Socialist government framed its legislative proposal as an update of old laws in the era of mobile phones and the Internet and as a legal formalization of intelligence services' clandestine practices. Aware of the unease spreading among its own supporters, it also heavily insisted that public liberties and personal privacy would be strictly respected.

A motley group of opponents from civil liberties associations, Internet companies, the Green party, the far left and even the far-right National Front loudly denounced a "Patriot Act à la française." Some members of the center-right opposition party UMP (Union for a Popular Movement), generally in favor of tough counter-terrorism laws, even joined the protesters. On April 15 in an op-ed titled "The liberties taken hostage" published in Le Monde, Pierre Lellouche, a leading neoconservative UMP deputy, denounced a "legal monstrosity" and warned that "a law meant to defend democracy could, because of its excesses and risks of diversion, lead to still more disastrous results than the action of a few hotheads, that we must of course combat without respite. But with our values and not theirs."

Prime Minister Manuel Valls dismissed these critics, but some outside observers were not convinced either. "The bill could give the authorities their most intrusive domestic spying abilities ever, with almost no judicial oversight," New York Times correspondent Alissa J. Rubin wrote.

The phrasing of the scope of the bill, critics insist, is dangerously vague. If no one questions the objective of preventing terrorism, how should such terms as "the prevention of attacks on the Republican form of institutions" or the protection of "major scientific, industrial and economic interests" or "of major foreign policy interests" be interpreted? A number of lawyers and even the CNIL (Commission nationale de l'Informatique et des Libertés, the official data protection watchdog), raised the red flag. The prestigious National Consultative Commission of Human Rights (CNCDH) voiced substantive objections and even the president of the commission in charge of security interceptions, Jean-Marie Delarue, expressed "his strongest reservations." Such broad language, according to the opponents' allegations, might lead to abusive interpretations and to the targeting of radical, but legitimate, forms of political opposition or social movements.

Freedom of expression and human rights groups are particularly incensed by the system of Internet-based data collection. According to news reports, if the bill becomes law, the intelligence services will be allowed to set up black boxes on Internet service providers which will potentially give access to billions of communications. Thanks to special algorithms, these flows of metadata are expected to provide the intelligence services with warnings of suspicious terrorist activity. Only when this suspicion was established, the government says, would the specific emails and Internet browsing history of the suspect be accessed.

The adversaries of the bill do not believe the government either when it promises that the 13-member National Commission for Control of Intelligence Techniques (CNCTR), a supervisory body, will effectively protect citizens' rights. Its decisions, as underlined by campaigners such as La Quadrature du Net, are nonbinding and could be overridden by the prime minister.

Although the Socialist government has been angrily protesting any comparison with the U.S. National Security Agency (NSA) or the Bush Administration's post-September 11 counter-terrorist measures, civil liberties and human rights activists openly talk of mass surveillance. "The threat of terrorism must not be used to justify the mass monitoring of every French Internet user's activity," Carly Nyst, legal director at Privacy International, noted in March. The risk of abuse of such ill-defined and overarching legislation was firmly denounced by Gauri van Gulik, Amnesty International deputy director for Europe and Central Asia. "This bill would take France a step closer to surveillance where nothing is secret except the surveillance itself. Even journalists, judges, politicians, and people who have unwittingly come into contact with alleged suspects could be subject to invasive surveillance," she said.

Despite the passage of the bill at the National Assembly. opponents still believe that the final word has not been said. Their campaign has been gathering momentum in recent days: 125,000 signatures against what some are calling "the French Big Brother bill" have been collected. Some 800 digital companies have signed the appeal "Ni Pigeons ni Espions" (Neither pigeons nor spies) that warns against the negative repercussions on the French digital economy. And all political parties, except the small Radicaux de gauche (center-left radicals), appear split on the issue.

The opponents will start lobbying the senators and "push them to amend the text," according to Adrienne Charmet, campaign coordinator of La Quadrature du Net . A last recourse will be the referral to the Constitutional Court, an initiative announced both by President François Hollande, anxious to placate his own rebels by proving the righteousness and legality of the law, and by the center-right opposition.

Even if the opponents fail to sway the senators they at least can be satisfied that, despite popular fears of terrorism, they were able to put civil liberties on the public agenda. The government will be under surveillance.


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