The bill has aroused broad criticism, both of its form and its substance. As it stands, the draft could undermine freedom of information since it reduces the legal protection for journalists, allows websites to be blocked without a court order and increases surveillance with no guarantees for the confidentiality of sources.
As far as its form goes, the procedure being used to fast-track it through sets a two-week deadline for discussion in parliament, instead of the usual six weeks, preventing genuine democratic debate.
“Too often when new security legislation is tabled, the lawmaker concerned has to be reminded of the need to guarantee basic rights,” said Prisca Orsonneau, a member of the Paris bar and coordinator of Reporters Without Borders’ Legal Committee.
“Criminalising expressions of opinion, blocking access to websites, extending investigative powers to the detriment of the confidentiality of sources… These worrying provisions contained in articles 4, 9 and 14 make it essential to allow time for reflection and democratic debate. Using a fast-track legislative procedure is clearly not the right way to go.
Article 4 of the bill removes the crimes of “provoking acts of terrorism” and “advocating terrorism” from the 1881 press law and inserts them into the criminal code. It sets a penalty of five years’ imprisonment and a fine of 75,000 euros. Disseminating the offending remarks via the Internet would be considered an aggravating factor and would increase the sentence to seven years.
The use of the term “advocating” implies an opinion, rather than an act, would at issue, which raises a problem. The safeguards contained in the 1881 law are aimed precisely at avoiding the penalization of expressions of opinion.
Could journalists or netizens be prosecuted under the criminal code, for example, for sharing a video that is posted online by a terrorist organization, or for giving a voice to members of terrorist networks?
In an interview with Le Monde, Christine Lazerges, president of the National Consultative Commission on Human Rights (CNCDH), expressed her concern about article 4, noting that “all matters relating to freedom of expression should remain within the 1881 law”.
Article 9 gives “the administrative authority the option to ask Internet service providers to block access to sites that provoke acts of terrorism or advocate them”. The blocking procedure described in the draft is unclear. Who draws up the list of sites to be blocked? What are the criteria? The bill provides for referral to a judge but without giving him or her the power or the independence to have any real control.
In 2010, RWB expressed its objections to the extra-judicial blocking of websites at the time parliament was voting on a new domestic security law known as Loppsi2. At that time, the Socialist Party, then in opposition, also opposed the law, which it considered repressive.
Extra-judicial blocking of websites entails a clear risk of over-blocking. The impact assessment that accompanies the bill states that in 2013, more than half the reports of sites advocating terrorism concerned social networks, mainly Facebook and Twitter. ISPs are now faced with the technical impossibility of blocking a single Facebook page or one Tweet.
Blocking mechanisms are becoming less effective as software to bypass them, such as VPN, Tor or proxy servers, becomes easier to use. Blocking content can be counter-productive since it forces terrorist networks to use more complex encryption methods, making the investigators’ work more difficult. Thus it is an ineffective measure, as has been pointed out by the National Council of Digital Technology.
Article 14 broadens the current provisions for tapping data that is recorded or typed on a computer to include images. Although such investigative methods may be legal, they should be used without violating the confidentiality of journalists’ sources. With this in mind, Reporters Without Borders reiterates that the 2010 law on the confidentiality of sources does not contain sufficient guarantees and needs a major overhaul.
While investigation and surveillance methods pile up in France with the proliferation of security legislation, such as article 13 of the Military Programming Law, there is an urgent need for new safeguards. Exceptions to the rules on confidentiality of sources must be spelled out and only a liberty and custody judge should be allowed to waive it.
The use of the fast-track procedure is highly dangerous, seen against the background of the parliamentary debate on digital technology and given that the bill is an extremely serious piece of legislation.
In a view on the security and terrorism law expressed in December 2012, the CNCDH said: “The fast-track procedure does not allow Parliament to function normally and take adequate account of rights and freedoms.”