Surveillance of all citizens: French government has now carte blanche

Paris, 30 July 2015 – On 23th July, the French Constitutional Council adopted a historical decision, standing out by its disregard for individual freedoms, right to privacy and freedom of speech. The “elders” have decided to avoid a real analysis of the proportionality of the new surveillance laws, and have shown their will to not stand in the way of the political game, becoming a mere rubber-stamping chamber.

Joint communiqué from the Observatoire des Libertés et du Numérique (Freedoms and Digital Observatory)¹The Observatoire des Libertés et du Numérique gathers: the Cecil, Creis-Terminal, the Human Rights League, the Syndicat de la magistrature, the Syndicat des Avocats de France and La Quadrature du Net.

However, the Constitutional Council had received a large contribution from citizen’s organisations, via amici briefs, calling for a deep analysis of the law and for condemnation of several provisions, starting with those with an excessive number of far-reaching purposes. Naturally, the Constitutional Council has defined the limits of every purpose, in reference to different articles from different codes (penal code, code of criminal procedure, domestic security code). Nevertheless, the accepted purposes are so large that any “disturbance of the public order”, such as attending a demonstration, can be subject to intelligence/surveillance technique. Now, it is to the intelligence services and the CNCTR ( National Commission of Control of Interception Techniques²The independent administration which will have to control the actions of the intelligence services.) to define, in emergency situations, what fits within the scope of the purposes without any judicial control.

Moreover, by approving the bypassing of a judge, the principle of the separation of powers is gravely damaged, even though it is a fundamental democratic guarantee. As such, a judicial judge, set to safeguard individual freedoms, is completely ignored. Furthermore, citizens will have the right in theory to file complaints against the French State Council, in regards to unknown proceedings as they are secret by nature. This has nothing of a real right of appeal!

On intelligence techniques, the French Constitutional Council has chosen a tautological demonstration: a mere echo of the government, it affirms that “these provisions are not a manifest or disproportionate obstacle to the right to privacy”. On the risks linked to the implementation of algorithms and false-positives, the Council refrains from quantifying the effects.

Neither is the French Constitutional Council worried about protecting the professional secrecy of lawyers or representatives, or even about protecting the sources of journalists. The Council has no problem with stating that metadata collection, as long as the content of the communications is not involved, does not hinder the secret of communication and freedom of speech. However, it is almost impossible to establish in advance whether intercepted communications concern professional or personal matters, a fact that the Council decides to ignore.

A series of legal arguments and technical explanations were provided and published in essays written by the opponents of this law³See the one presented by FDN, FFDN and La Quadrature du Net, and the one by Amnesty International, Cecil, Creiss-Terminal, the Human Rights League, the Syndicats des Avocats de France and the Syndicat de la Magistrature. However, the French Constitutional Council hereby signs a double resignation by having ignored the actual reality of a complex terminology (IMSI-catchers, “black-boxes”) and for having avoided to compare this reality with articles of the Constitution on the balance of powers, secret of communications and the respect to privacy.

In the end, the highest judicial authority in France has only shown interest for the provisions that were either obviously unconstitutional — such as global surveillance without any control from CNCTR — or those that went against formal principles — such as a budgetary provision that should be included in a financial bill rather than an ordinary act. The message is clear: the Constitutional Council is not an obstacle for the “decisive progress” (in the words of PM Manuel Valls) made by establishing a general surveillance system over the French population.

The Observatoire des libertés et du numérique strongly condemns this wayward trend toward a panoptical society, where all citizens may be spied upon. This path reflects the shipwreck of a government in disarray, ready to trample the fundamental ideals of the Republic, and acting against the interests of our society by manipulating our fears. This defeat must be a wake-up call for all citizens: let us come together to defend our freedoms!