The French government has declared to the world its commitment to the right to privacy offline and online, supporting the United Nations (UN) General Assembly resolution passed on December 18 on the right to privacy in the digital age. The resolution, which France co-sponsored, calls for countries to review their surveillance practices and ensure that the right to privacy is protected, given how technology has evolved, including through independent oversight and greater transparency.
This rousing show of commitment to privacy sharply contrasts with a new law adopted by parliament last week with little debate and published by President Hollande on December 19. The law allows for far-reaching surveillance with no judicial oversight, and effectively no checks to prevent the government from collecting vast amounts of personal information from people who have done nothing wrong.
Critics of the provisions, in what is now Article 20 of the Law on Military Planning for the years 2014 to 2019, have warned that it could permit extremely broad surveillance of both content and metadata, including interception in real time. The critics include organizations that specialize in digital freedom as well as those with a broader human rights mandate and major internet companies.
Defenders say the controversial article does not extend the scope of surveillance under current laws. They contend that the article actually improves safeguards because all interception decisions will rest with a ”qualified” person appointed by an oversight body, the National Commission for the Control of Security Interceptions (CNCIS), from a list proposed by the prime minster. At present, some decisions are made by the interior minister. This is only a very small step forward.
The law allows designated officials at the Ministries of the Interior, Defense, Economy, and Budget to request communications data from operators and hosts of internet services on extremely broad grounds such as national security, “safeguarding the essential elements of France’s scientific and economic potential”, and the prevention of terrorism, without judicial authorization. The breadth of this law is out of step with growing international demands to limit such intelligence gathering narrowly, to cases involving specific and genuine threats to national security or public safety.
Under the new article, the “qualified person” decides whether to allow the data collection and sends its decisions to the CNCIS. The body is composed of a senator, a member of the National Assembly, and a president appointed by the French president. But it will have no power to block an interception even if it regards it as unlawful. It will only be able to recommend ending the date collection to the prime minister.
France’s new law seems out of step with a growing number of voices calling for modernization of surveillance laws and practices to bring them in line with states’ duties to protect privacy and freedom of expression. The adoption of the UN General Assembly resolution on December 18 shows there is an international consensus that countries must protect the right to privacy as technology allows for increasingly invasive monitoring.
The US Congress has held at least half a dozen public hearings on the topic, leading to a robust public debate over what legislation is necessary to ensure that surveillance practices are proportionate and justified. On December 18, a panel appointed by President Barack Obama made strong recommendations for ending the National Security Agency’s (NSA’s) mass data collection, a contribution to the public debate that Obama welcomed.
The new law is also a missed opportunity to improve very weak parliamentary oversight of France’s intelligence agencies. The Law on Military Programming gives the parliamentary delegation for intelligence (DPR) access to more information on activities and plans relating to the intelligence agencies. But the access remains very limited and excludes key information and documents, such as those relating to ongoing operations of the intelligence agencies and exchanges with foreign agencies.
Faced with the allegation during the summer that French intelligence agencies were engaged in mass surveillance, the French government was silent on what the practices were and whether they extended beyond France’s borders and how. Six months later, it is high time for the French government to come clean about its surveillance practices. Parliament, the media, and the public should insist on it.
The right to privacy and freedom of expression needs to be at the heart of the debate. Everyone wants to be safe from terrorist threats, but national security is no excuse for mass intrusion into citizens’ digital activities, which increasingly cover details of their private, family, and professional lives.
The debate in France should not be limited to NSA surveillance, over which the government was quick to express its outrage. Rather than passing legislation that may have equally far-reaching consequences for the privacy of people in France and abroad, the government needs to provide the public with the tools to understand the issues and participate in a genuine debate. In the year before the new Article 20 enters into force, the government and parliament need to find ways to ensure that the right to privacy is genuinely protected, instead of supported publicly at the UN and then set aside in practice in France.
Izza Leghtas is Western Europe researcher at Human Rights Watch.