France enacts sweeping legislation limiting fundamental freedoms

By EDRi · December 2, 2015

On 13 November time stopped in France and around the world as the heart of Paris was attacked. One hundred and thirty people were killed while enjoying dinners with friends, celebrating birthdays, and dancing at a concert. The French government, with the support of most of the population and political groups, rapidly declared a state of emergency that was initially scheduled to last 12 days. This drastic measure altered the normal balance of power in France, giving more discretion to the President and the government.

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Since several suspects were still at large, the President requested that the Parliament extend the state of emergency to three months, and modify the French law on the state of emergency, which dates from 1955. Parliament granted both requests with limited opposition, despite the absence of justification for the changes, and despite the fact that the modifications created new measures extending surveillance powers and limiting freedoms. More radical changes could come as the French government has chosen this difficult period to consider modifying the Constitution.

France has historically been a country with a strong tradition of defending human rights. Despite this proud record, more recently abuses and violations of those universal rights have taking place in France, as highlighted in a recent Human Rights Watch report. Ostensibly in response to terrorist threats, France has passed no fewer than four separate laws extending its surveillance powers since December 2014: the Military Programming law, the Anti-Terrorism law, the Intelligence law, and the International Surveillance law. Together, these laws have made France an all-seeing state, capable of monitoring the population, collecting and retaining personal data for excessive periods, snooping on the private communications of individuals in France or abroad, and the list goes on. The newly adopted proposals have extended the French surveillance state to extremes never previously seen in the digital age.

The law adopted on 20 November declares a state of emergency in all French territories for three months, during which:

  • Warrantless house searches are authorised night and day, unless the house is occupied by a lawyer or a member of Parliament. This authority is granted by the Home Affairs minister or the Prefect of a region. If there is a wrongful or unjustified search, an individual can seek redress from of an administrative court.
  • Warrantless searches of electronic devices are authorised. Data can be accessed and copied by law enforcement.
  • The Home Affairs minister has the power to place individuals under house arrest if “there are serious reasons to believe that his/her behavior constitutes a threat to security and public order”. These individuals can also be placed under invasive surveillance.
  • The government has the right to dissolve groups or associations that “take part in the execution of acts that represent a serious infringement to public order or whose activities facilitate or incite the execution of such acts.” Under French law, public order is a subjective notion, which can be interpreted in different ways depending on the situation. It has never been defined by the French constitutional court.
  • The law includes a measure to allow authorities to block websites that promote or incite terrorism, without the intervention of a judge. However, this mirrors a proposal that was already adopted in November of last year during reform of the Anti-Terrorism law, and that measure remains in effect.
  • Silver lining: The 1955 law gave authorities control of the media, and this is no longer authorised.

The biggest change might be yet to come. François Hollande, the French President, has announced a proposal to modify the French constitution to “adapt the State’s response to emergency situations.” The Prime Minister has been tasked with preparing this proposal, and it is expected to be released in the next few weeks. While everyone awaits the release, several political groups are already expressing doubt as to whether the government needs to modify the Constitution, which has been in place since 1958.

On the day following the Paris attacks in January, the French President said “freedom will always be stronger than cruelty.” This message should guide how our governments act during this period of crisis. We need leadership not just to keep us safe, but to protect our rights, freedoms, and democratic values.

After the Paris attacks, France enacts sweeping legislation limiting fundamental freedoms (25.11.2015)

Human Rights Watch: World Report 2015

(Contribution by Estelle Massé, EDRi member Access Now, International)