Under the new law, French intelligence agencies would be empowered to hack into computers and devices and spy on the communications of anyone who makes contact with a person under suspicion, even incidentally. The new law will enable them to do this without having to obtain a judicial warrant.
Our organisations express their strong concern at the Bill's proposal to install surveillance technology at internet service providers and telecommunications companies to analyse all internet activity against specific algorithms set by the government. Such mass surveillance systems will undermine internet users' privacy, have the potential to chill free expression, and could be subject to serious abuse.
The Bill places unprecedented power in the hands of the Prime Minister's office, empowering it to authorise all forms of surveillance without having to seek the authorization of a court. While the law provides for the establishment of an expanded National Commission for the Control of Intelligence Techniques, the Commission's recommendations would not be binding on the Prime Minister and his or her delegates. By removing early judicial control of surveillance, the Bill not only represents a serious incursion into the privacy of ordinary people, but further increases the risk of abuse. It could also exacerbate the risks mass surveillance poses for those who work on sensitive issues and rely on confidential sources, including journalists and human rights organizations.
The foreign surveillance powers granted by the Bill are vast and echo those currently being legally challenged in the UK. They empower the French Prime Minister to order the interception of communications that are emitted or received from outside France. The technical measures that intelligence agencies can implement would be decided by the State Council in an unpublished decree, according to the draft Bill.
In addition to the proposed bulk filtering measures, the Bill grants government agencies a number of other dangerous surveillance powers:
-* The ability for intelligence agents to hack into devices and computers, as a technique of last resort, is explicitly provided for in the Bill. Hacking is an extremely intrusive form of surveillance and its use by any State authorities, particularly intelligence agencies, must be highly regulated to protect against abuses of power, yet the Bill makes no provision for judicial authorisation or oversight of hacking powers.
-* The Bill empowers the intelligence agencies to use “proximity sensors” in field surveillance in order to ascertain the location and identification of particular people. This provision is an attempt empower French intelligence agencies to use IMSI catchers, according to the Commission Nationale de l'Informatique et des Libertes, the French data protection authority, which was able to push the government to include a number of additional protections in the Bill prior to its publication. IMSI catchers are mobile interception devices that are subject to US and European export controls, and have recently come under close scrutiny in US courts and legislatures. The Bill stipulates that IMSI catchers can be used for collecting the live geolocation information of individuals using their devices. Because IMSI catchers are not targeted devices but identify and geolocate individuals within a given locale (such as a plaza or an airport) this would inevitably facilitate the surveillance of individuals who are not suspected of any crime;
-* The electronic communications of anyone incidentally connected with a person of suspicion – including through passing offline or online connections or encounters – are liable to be intercepted and examined by the intelligence agencies under new powers introduced by the Bill.
The organisations are calling on the French parliament to give the Bill robust scrutiny in the coming weeks to ensure French law complies with international human right law and standards on surveillance.
Carly Nyst, Legal Director at Privacy International, said:
The introduction of this law only two months after the Charlie Hebdo tragedy is an attempt to broaden surveillance powers under the guise of preventing terrorism. Increased security does not have to come at the price of reduced privacy. And the threat of terrorism must not be used to justify the mass monitoring of every French internet user's activity. Should all of the proposed measures pass through the parliament without strong scrutiny and examination, France will be well on its way to becoming a surveillance state, and at the same time we will not be any safer from terrorist attacks.
Joshua Franco, Researcher on Technology and Human Rights at Amnesty International, said:
France cannot let the quest for security come at the cost of respecting the human rights to free expression and privacy. These broad and invasive surveillance powers would not be subject to meaningful oversight and may lead to people censoring themselves online.
Karim Lahidji, FIDH President, said:
We are highly concerned about the lack of judicial supervision over these provisions, which gives the Government the power to authorise wide surveillance of any individual without any possibility to judicially challenge these measures. We are also concerned about the growing tendency to abuse anti-terrorism rhetoric to infringe on liberties.
Christophe Deloire, Secretary General of Reporters Without Borders, said:
We demand that this law include safeguards for the right of journalists to work without being spied on, or else it will constitute a grave violation of media freedom. The government must restore protection for the confidentiality of journalists’ sources by bringing reference to a judge back into the established procedures. It is vital that an exception be made for journalists in the system of surveillance envisaged in this bill.
Pierre Tartakowsky, LDH President, said:
Only an effective and proportionate control of intelligence techniques, carried out prior to the authorization of the measures, and for a purpose strictly defined and relevant to national security, will be effectively in accordance with fundamental rights.