French Constitutional Council approves sweeping surveillance powers

On 23 July, the French Constitutional Council approved sweeping surveillance powers for intelligence agencies. In its decision, the Council declared almost all provisions constitutional, in contradiction to vehement opposition from civil rights groups, human rights experts, academia and the online business sector. The “Loi Renseignement” (also dubbed the “French Patriot Act”) was passed by the French National Assembly on 24 June and allows intelligence agencies to tap phone and emails without judicial permission.

With regard to the scope of the law, the Council added only a few explanations in order to limit the extensive scope of grounds (the fight against collective violence and terrorism, the defence or promotion of major interests in foreign policy, economy, industry and science) that allow for surveillance by intelligence agencies.

Once the grounds are defined and duly justified, instead of a judicial approval, security officials need to request an authorisation from the newly created “National Committee for Control on Intelligence Techniques” (CNCTR). The Council ruled that the composition of the CNCTR, despite the fact that its members are appointed by political institutions, will be able to provide sufficient oversight and is thus in line with the French constitution. Unfortunately, the Council failed to provide any sort of analysis that would back up this decision.

Only last week, the United Nations Committee for Human Rights stated that the French law “grants overly broad powers for very intrusive surveillance on the basis of vast and badly defined objectives” and called on the French government to “guarantee that any interference in private life must conform to principles of legality, proportionality and necessity”.

France’s intelligence services can now deploy the list of surveillance measures, they now have the power to:

• require internet service providers to install so-called “black boxes” to collect communications metadata directly from Internet companies, and to use algorithms to automatically flag suspect behaviour online;
• remotely install trojan horses on personal computers to access camera, microphone and passwords;
• deploy real-time localisation of a person, vehicle or object;
• collect metadata via fake relay antennas for mobile phones (International Mobile Subscriber Identity, or IMSI catchers in short) to intercept traffic data and track the movement of phone users in a specific area;
• carry out surveillance of lawyers, judges, parliamentarians and journalists.

The Council struck down only three of the law’s provisions, including one that would have allowed the services to intercept overseas communications. The problem is that other sections of the law that were not invalidated, clearly give responsibility to these services to act abroad. This is for instance the case of the new Article L. 811-2 of the Code of Homeland Security (CSI). Another provision (Article L821-6 new, CSI) that was invalidated would have allowed intelligence services to carry out surveillance without authorisation from the Prime Minister in “emergency cases” since it considered that this would be a disproportionate interference with the right to privacy. The last provision that was declared unconstitutional concerned the annual budget.

The French civil liberties group La Quadrature du Net regretted that

[t]his decision is extremely disappointing. The judges of the Constitutional Council decided to summarily dismiss the numerous arguments raised in the dozen briefs submitted to the Constitutional Council by many players in the defence of fundamental rights.

While some provisions of this law will now come directly into effect, others first need to be implemented by a series of decrees. However, La Quadrature du Net declared that it now wants to continue its fight, especially on a European level.

UN International Covenant on Civil and Political Rights report (24.07.2015)
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=899&Lang=en
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fFRA%2fCO%2f5&Lang=en

EDRi-gram: French surveillance billpushed ahead despite massive criticism (22.4.2015)
https://edri.org/french-surveillance-bill-pushed-ahead-despite-massive-criticism/

Shame on France: French Constitutional Council Widely Approves Surveillance Law! (24.7.2015)
https://www.laquadrature.net/en/shame-on-france-french-constitutional-council-widely-approves-surveillance-law

The Loi Renseignement is published in the Official Journal. What now?
http://www.nextinpact.com/news/95934-la-loi-renseignement-publiee-au-journal-officiel-et-maintenant.htm

(Contribution by Kirsten Fiedler, EDRi)