France: Parliament must reject law that gives carte blanche to mass surveillance globally
The draft bill, which the National Assembly will take up on 1 October, revives efforts previously struck down by the Constitutional Council in its review of the 24 July 2015 French Surveillance Bill.
"Allowing for such extensive, intrusive and indiscriminate mass surveillance is a flagrant violation of people’s right to privacy and freedom of speech.”
Sherif Elsayed-Ali, Deputy Director of Global Issues at Amnesty International.
“Under this new law, almost all internet communications will be considered fair game by the French authorities, without any form of meaningful checks and balance. Allowing for such extensive, intrusive and indiscriminate mass surveillance is a flagrant violation of people’s right to privacy and freedom of speech,” said Sherif Elsayed-Ali, Deputy Director of Global Issues at Amnesty International.
“The law is so broad it essentially provides the Executive and intelligence agencies carte blanche for mass data interception. France’s legislators must stand up against fundamental rights being bulldozed with fast-track processes.”
While the law adopted in July already gives the government the authority to use mass surveillance techniques to combat terrorism, the new bill goes a step further and explicitly allows for mass surveillance techniques in the pursuit of a long and undefined list of objectives, including defending and promoting major foreign policy, economic and scientific interests.
Amnesty International has several serious concerns about the proposed bill, including that it:
- Grants very broad powers resulting in mass indiscriminate surveillance. The draft law allows “non-individualized” interception of all electronic communications (metadata as well as the content of emails, phone calls and other communications such as those resulting from Cloud computing) sent to or received from abroad, as well as the exploitation of these communications in a virtually limitless set of circumstances.
- Contains disproportionately long periods of retention of the information collected. The new law would further extend the already unjustifiably long period of retention of the information collected, and it also does not appear to address the period of retention of the communications themselves.
- Does away with prior judicial authorization. Like the law adopted in July, this new bill does not foresee judicial authorization of surveillance. In addition, it further undermines the guaranties contained in the law since the National Commission for the Control of Intelligence Techniques (CNCTR)’s prior, yet very weak, role in controlling the authorization of surveillance measures is removed entirely.
- Does not define the surveillance techniques allowed, which could include the use of very invasive methods to gain full control over a person’s computer or phone.
- Is silent about a number of fundamental issues such as possible intelligence-sharing agreements with foreign states.
- Is unclear about whether or not it extends to interception of communication conducted outside French territorial borders. It is entirely unclear whether the activities of intelligence agencies abroad, including the overseas interception of communications, would be based on this new bill or essentially remain unregulated.
- Is inherently discriminatory. The law would provide different levels of protection according to the location of the person affected by the surveillance measures. Not only does this new bill provide a lower level of human rights protection for the mere fact that a communication is crossing borders, but it further establishes a lower set of protections depending on the location of the person concerned.
Amnesty International also said the process for examining the draft law lacks full legislative scrutiny. The draft text has been introduced in the format of a parliamentary bill in order to bypass the Council of State’s compulsory prior review. The government has also sought once again to “fast track” the process.
Given the very serious potential impact on fundamental rights of millions of people in France and abroad contained in the draft legislation, a clear, well-informed, thorough and transparent public and parliamentary debate is essential.
“If this legislation is adopted, anyone living abroad who is researching possible human rights violations by the French state or a French company could find their communications subject to intrusive interception,” said Sherif Elsayed-Ali.
"It could also have devastating consequences for human rights defenders, including in countries with especially poor human rights records – there is nothing in the current proposed bill to prevent French authorities from sharing information about their communications with these governments.”
This draft bill in France is part of a current dangerous trend for mass surveillance powers internationally.
In September, the Swiss Parliament approved a law giving the Swiss intelligence services greater powers to monitor private communications.
Similar plans are already in place in the UK and the Netherlands. In the USA, an Obama administration working group is currently exploring different approaches law enforcement agencies can use to unlock encrypted communications.