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Debate Over France’s New Intelligence Bill Brings Fear of Surveillance State

French lawmakers have spent this week debating a proposed law that has raised concerns over privacy and the government's power to implement a system of mass surveillance.

by Matthieu Jublin
Apr 17 2015, 10:30pm

Photo by Sam Nabi

French lawmakers have spent the past week debating an intelligence bill in the National Assembly — the lower house of French parliament — amid fierce opposition from civil liberties advocates, who argue that the proposed legislation is too vague and that it sanctions poorly regulated mass surveillance.

The bill will next go to France's Senate for debate before returning to deputies for a vote on May 5. Deputies from both sides of the political spectrum have overwhelminglyralliedaround the bill, which seeks to update the current legislation drafted in 1991, long before the rise of the Internet and the widespread use of cellphones.

The proposed law — first unveiled in March, two months after the terror attacks that left 17 people dead in and around Paris — has raised concerns over privacy and the government's power to implement a system of mass surveillance.

Related: Is France About to Get Its Own Patriot Act?

survey undertaken by pollster CSA for the French news site Atlantico shows that 63 percent of people interviewed in France were prepared to forego some of their individual freedoms to help the government combat terrorism. In the same poll, only a third of those interviewed said that they had "a good idea" of what measures were outlined in the intelligence bill.

The bill defines its objectives as protecting France's "major foreign policy, financial, industrial and scientific interests" and removing "violent threats to national security" — a mandate that the bill's detractors deem disturbingly broad.

"Black boxes"
Of particular concern is the measure sanctioning the installation of so-called "black boxes" on the networks of internet service providers to filter internet traffic and automatically flag up suspicious activity.

The black boxes would rely on algorithms to automatically detect metadata. In the event of alarming online activity, French intelligence services could then request access to a user's personal information, including their identity.

This system, argue the bill's supporters, would not monitor actual communications, and the metadata would remain anonymous. Defense minister Jean-Yves Le Drian tried to calm critics by arguing that the "black boxes" would "not target individuals," but rather "modes of communications that suggest terrorist activity."

Related: French Prime Minister Swears Proposed Spying Law Won't Lead to 'Widespread Surveillance of Civilians'

But despite reassurances from the government, the French data protection agency (Commission Nationale de l'Informatique et des Libertés) has pointed out that anonymity is far from guaranteed, particularly since the law ultimately allows individuals deemed suspect to be identified.

Critics have also argued that a provision to protect those who work in certain professions —journalists, lawmakers, judges, attorneys — is moot, since a black box has no way of knowing a user's profession.

Insufficient controls
The bill outlines the creation of a commission to oversee all monitoring requests: the National Commission for the Control of Intelligence Technical Control (Commission Nationale de Contrôle des Techniques de Renseignement). It will field requests from the various French intelligence agencies affiliated with the Ministries of Defense, Interior, and Finance.

Critics are skeptical that the proposed commission can be an effective watchdog, since its power is merely advisory and can be countermanded by the prime minister. The draft bill also states that in the event of "absolute emergency," intelligence agencies would have ways of overriding the commission's recommendations, and in certain cases, the prime minister's.

As a last recourse, the commission can seize the Council of State — France's supreme court for administrative justice — if it disapproves of a particular request. In principle, citizens will also be able to refer to the Council of State if they feel they are being unjustly spied on, but as French daily Le Monde points out, it is rare for an individual under surveillance to know that he or she is being monitored.

The law's detractors have also questioned the commission's ability to oversee the controversial black boxes, since only one of its members — a representative of French telecom regulator Arcep — will have the required technical expertise to monitor the algorithms. Others have pointed to the lack of specifics concerning the financial and staffing implications of this new commission.

The proposed bill sanctions the use of various measures to monitor cellphone communications, including IMSI catchers — a device used to eavesdrop on mobile phone traffic, which also tracks the movements of cell phone users.

The device, which is illegal in some countries due to privacy concerns, poses as a cellphone tower and tricks cellphones into connecting, collecting not only their data but the data of nearby mobile devices as well.

According to the bill, these devices will only be used in the cases of clearly identified suspects. Critics say this provision does not guarantee against another article of the bill, which allows intelligence officers to use "any technical device" available to them to "open, delete, delay or divert communications, whether or not they have been received."

The Snowden amendment
One of the measures that has garnered the most public support is a provision to protect whistleblowers who flag up abuses of power by the government.

According to one of the bill's amendments, whistleblowers will now be encouraged to report these abuses to the CNTR, who will then alert the public prosecutor. Bypassing the commission, however, and taking these findings to the media, remains illegal.

Follow Matthieu Jublin on Twitter: @MatthieuJublin
Image via Flickr