French Intelligence Bill: Everyone Under Surveillance

Paris, 26 March 2015 — While presenting the Intelligence bill adopted during the 19 March 2015 Council of Ministers, the Prime Minister proudly asserted that it contained “legal means of action but neither exceptional means nor the generalised surveillance of citizens”!

Joint Press Release with the OLN (Observatoire des Libertés et du Numérique)1

While this bill does indeed legalise what were up to now secretive investigative methods, the guarantees given regarding the respect of our liberties are nothing more than a fallacious rhetorical mantra. Furthermore, the government is robbing the public of a proper debate in Parliament by fast-tracking the bill's review, claiming the draft legislation is the subject of a wide consensus.

“No measures of exception”: recording audio in private spaces, capturing images, accessing in real-time to Internet connexion data or installing communication recording devices in large areas of public space for dragnet surveillance (capturing everything and sorting it out later), such are the means which are not “measures of exception”. Should we then accept to see those means become the humdrum reality of daily life?

“No generalised surveillance of citizens”: under the pretext of a legitimate fight against terrorism, the bill creeps far beyond its mission. It states that special intelligence powers can be enacted to ensure, among others, “the prevention of collective violence, the nature of which can gravely compromise public order”. In the name of fighting terrorism, social protests movements could be targeted by this enhanced surveillance. All citizens will become the potential targets of such control, despite what is being said.

Worse, the scheme being in the hands of the executive powers, it bypasses any control by the judicial courts which is seriously detrimental to the individual liberties they are constitutionally responsible to protect.

The verification of compliance with the –exceptionally vague– standards used to implement these outrageous investigative powers, is entrusted to a board which follows an inverted logic: authorisations require a single commission member, except in case of an emergency, when none is necessary. But the absolute majority of commission members is necessary to recommend abstaining from using the investigative powers, though the executive powers remain free use them nonetheless. And if the commission remains silent, it is taken as a consent. Thus infringing on personal freedoms becomes the rule, protecting them an exception.

It is only after the fact, and only if the commission's filter was applied, that judicial appeals may be filed, exclusively before the French Council of the State (Conseil d'État). Furthermore, due to their confidential nature, the appeals will be examined without the right of reply. In any case, they will remain illusory as, by definition, the plaintiffs need to remain ignorant of the surveillance measures they are subjected to.

Lastly – a major flaw in the scheme – no limit is set to determine when and according to which criteria the legal status of an investigation can revert from an intelligence matter, conducted by an extraordinary administrative police force, to a common law judicial inquiry, with all the guarantees it brings to those targeted. Judicial courts could therefore be kept away from investigations regarding offenses and crimes even though they fall under their remits.

This bill creates a lasting and secretive system to control citizens and entrusts the executive powers with virtually unlimited use of it. As such, it is unacceptable. Only the real preemptive control of intelligence methods both proportionate and following strictly defined national security objectives can respect fundamental rights.

We call on all citizens and MPs to act in order to bring this bill to its only legitimate end: ensuring the intelligence and surveillance techniques framework respects the requirements of the rule of law.