French counter-terrorism bill lacks press freedom safeguards

Measures appropriate to a state of emergency would become a permanent feature of French life under this proposed law, which would put national security above all other considerations and would jeopardize civil liberties, including the freedom to inform.

RSF calls on the Legal Committee’s members to ensure that journalists are able to continue working and protecting the confidentiality of their sources. The Paris-based NGO sent its recommendations on this bill to the Legal Committee at the end of last week.

Every democracy has to strike a balance between freedom and security but this bill, which the Senate approved on 18 July and which begins its committee stage in the lower house today, clearly puts security before the protection of rights and freedoms. Several of its provisions would undermine the ability of journalists to work freely and protect the confidentiality of their communications and sources.

Unfounded suspicions

Many human rights groups have criticized the bill. They say it would institutionalize suspicion, would limit the role of judges in protecting rights, and would target “behaviour” – forms of existence and expression – rather than actual crimes. They also argue that its focus on “threats to security and public order” and on “defending and promoting the nation’s fundamental interests” goes much further that what is needed to combat terrorism.

As a result of all these concerns, many organizations that defend human rights and fundamental freedom, including RSF, are pressing France’s legislators to reinforce the bill’s safeguards for rights and freedoms.

The bill endangers press freedom by allowing surveillance, searches and other intelligence-gathering methods that, if applied to individual journalists, could prevent them from working or could limit their ability to protect their communications and sources, and therefore to conduct thorough, confidential investigations into sensitive subjects.

Any persons “entering into regular contact” with individual terrorists or terrorist organizations could, under the bill, be the subject of a judicial order confining them to the municipality where they live, forcing them to wear an electronic bracelet and forcing them to terminate all contact with these individuals or organizations.

But journalists specializing, for example, in covering Jihadi networks have every right to contact individual terrorists or terrorist organizations for the purpose of research and information-gathering and in order to satisfy the need to get opposing views and reflect the adversary’s worldview.

As the bill’s wording lacks clarity, it would be hard to ensure that such “regular contact” would not be used as grounds to place a journalist under surveillance. Because of the vague and subjective nature of such terms as a person’s “behaviour” and “serious grounds for suspecting” a threat, journalists could be placed under surveillance although engaged in the normal and legitimate activity of gathering information on matters of public interest.

RSF therefore urges legislators to ensure that the law makes an exception for those in regular contact with terrorists in the course of “practicing a profession whose purpose is to inform the public” – the same exception that exists in article 421-2-5-2 of the criminal code on regular visits to terrorist websites.

The bill’s article 4 on searches also poses a problem. It says searches cannot be conducted and material cannot be seized in “places designated for the practice of professional journalistic activities.” But this does not suffice to ensure that the homes of journalists could not be searched on the grounds of their “behaviour” or regular contact with terrorists.

Journalists could have confidential documents, including information about their sources, in their homes. If homes can be searched and computers can be seized, journalists cannot protect the confidentiality of any of their sources, whether or not these sources are suspected terrorists. The police could use a journalist’s contacts with a terrorist as grounds for searching their home and taking their computer, and could thereby get access to all the information they have gathered in the course of their reporting, and to all their sources.

Tighter controls on searches

RSF therefore urges legislators to include specific safeguards on searches of journalists’ homes. Above all, a judge must supervise such searches and ensure that the investigation respects the journalists’ freedom to exercise their profession, does not violate the confidentiality of their sources, and does not constitute an unwarranted obstruction or delay to the publication of information.

Press freedom and the confidentiality of sources are also threatened by the bill’s provision for monitoring wireless networks “not involving an electronic communications operator.” This could include wireless intranets, private networks, a news organization’s network, and the public WiFi on a train. These intelligence-gathering methods are permitted in the same way as they already are in the intelligence law adopted in July 2015, which RSF condemned at the time.

The long list of “fundamental national interests” that can justify surveillance and interception, the lack of prior control by a judge, and the complete inadequacy of the safeguards for journalists would make it very easy for the intelligence service to discover who journalists are in contact with. The confidentiality of their sources would be no more than an illusion under this bill, as it is already under the 2015 intelligence law.

These provisions could even obstruct the work of NGOs such as RSF. The grounds for surveillance include protecting “leading foreign policy interests.” So, if RSF organized a demonstration in Paris during a visit by a foreign president, as it has in the past, its wireless communications could be intercepted.

Reinforcing the procedural safeguards against abusive surveillance is therefore essential. In particular, prior control by a regular court judge should be incorporated into this proposed law, as it should into the 2015 intelligence law.

This proposed law should also include solid procedural safeguards preventing or strictly regulating any surveillance of journalists in connection with their work. Similarly, no surveillance of news organization intranets or wireless networks used solely by journalists should ever be possible.