France's Surveillance Bill or How to Become Those We Are Fighting

by Yasser Louati

From a recent survey conducted by polling institute CSA, 63% of the French population are in favor of a reduction in civil liberties to fight terrorism.

The much debated fragmentation of French society is now a fact as a majority of its citizens, by fear  of their fellow countrymen, is ready to give up on their basic freedoms by accepting the Government’s new bill on surveillance.

“I’ve got nothing to blame myself for… Terrorists are a different kind of people and it is always the same ones who perpetrate terrorist attacks… I am therefore ready to sacrifice my freedoms in order to feel protected from them.” This kind of thinking, partly based on the irrational fear and rejection of others, shows that  French society is no longer driven by hope but by fear.

Official political discourse and loyal mainstream media outlets may have succeeded in pushing public opinion to stop cherishing rights and seek shelter behind a more powerful government. By continuously hammering the idea either explicitly or implicitly that terrorists come from the same community -understand Muslims-, and that for “us”, the vast majority of people whom have “nothing to hide”, it has become acceptable to drift away from the rule of law and allow the extension of executive powers without oversight.

Except that, and history proves it, once a bill is passed into law, nothing keeps the government from applying it to the rest of society. Given the fact that we have no clear definition of  terrorism and that existing definitions are always used as political tools to demonize opponents, what we accept today towards so called islamists -without making a difference  between those who choose terror and those who don’t-, we pave the way for future persecution of political dissidents, journalists, whistleblowers, union leaders and any other person or organization that the government perceives as tenacious.

The French Fifth Republic (enacted by the 1958 Constitution after the return of Charles De Gaulle to power) has had its load of illegal wiretapping affairs. For instance, the “Ears of the Elysées*” scandal when newly elected President Francois Mitterrand, in reaction to the Rue des Rosiers terrorist attack in 1982 decided to launch a widespread wiretapping campaign. The initial objective was to indeed identify terrorist cells on French soil but it rapidly drifted into becoming a systematic spying program on opposition leaders, journalists, academics, lawyers and even celebrities. Between 1983 and 1986, nearly fifteen hundred people were put on the list and to this day, light has not entirely been shed on the case. Mitterrand steadily denied being aware of the program even though his prosecuted lieutenants testified otherwise in court.

Now, thanks to this bill, whatever was illegal yesterday will become completely legal today. Even more worrisome, judicial oversight will be completely removed from the process and a simple “administrative request” between services will be sufficient to break into people’s homes and businesses, install cameras and bugs, track people’s vehicles, install spyware on any computer, record and store all internet surfing data and remotely siphon cellphone internal memories.

Moreover, and according to current President Francois Hollande himself, the collection of metadata is a fact and is already being implemented. These metadata, their analysis and storage for indefinite periods of time will be used to design algorithms capable of predicting people’s behaviors and “allow” the government to intervene should they detect the possibility that a suspect is about to commit something. How the system works and how it will differentiate between a real terrorist suspect and an innocent person remains a complete mystery. Authorities will literally be able to intervene preventively against someone based on mere suspicion and a mathematical formula. Judge Charles Pratt didn’t hesitate to put it clearly: “I’d rather intervene ahead of time before a person decides to commit something. So yes I maybe a mean evil judge”.

From online shopping to reading the news, every single website a person visits will be known to the government. And that does not only mean knowing what their habits are, it will ultimately mean being capable of knowing what people think and what the government thinks they can become.

Of course, the government tried to reassure public opinion by setting up an “independent” oversight body -the CNCTR (2)- and the possibility for “recourses”. But to this day, they single handedly refused to grant it full independence and full authority.

Worried about his bill, Jean Marie Delarue, head of the CNCIS (3) -which currently oversees wiretapping operations-, points to the weak authority that will be granted to the new CNCTR, the vague definitions used in the bill and the possibility to wiretap a suspect as well as any other person in his or her entourage. The appreciation of whom should be wiretapped will be left to the agency in charge.

As a matter of fact, the CNCTR will only voice its opinion and send non compelling recommendations to the Prime Minister. Moreover, intelligence agencies are by definition beyond the reach of the law. Who can be naive enough to think that intelligence services whose work is classified, will accept to show up in court, open top secret files and answer a judge at the request of a wrongly convicted citizen?

The main justification for this bill is that we’re living in the all digital age and that since evil terrorists live among us -remember PM Manuel Valls’s reference to "the enemy from within" -, there is no other solution but to monitor all communications. According to some, we live in exceptional times requiring exceptional laws. But given the current political debacle the Valls administration finds itself in, one can only wonder why a highly unpopular government wants exceptional powers.

Using the arguments put forward to legitimize this bill, every single terrorist who committed an attack had already been on the watch list. How many times have we seen experts blasting the failures of intelligence services? Be it Coulibaly, Merah, Nehmouche, Brevnik and the likes, each one of them was under close surveillance. The latter had even published an online manifesto calling for the killing of Socialists and Muslims and the waging of a “holy war”. Yet they had all fallen between the cracks, not because of a lack of laws but because of a blatant lack of coordination between security services which effectiveness is hampered by internal rivalries and political interference.

While this bill is being “debated” (only thirty brave MP’s showed up), the Advocate (4) Jacques Toubon, the CNIL (5) , Privacy International, Human Rights Organizations, the Syndicate of Judges and Union of Lawyers in Paris, the anti terrorism Judge Marc Trevedic - the same who previously denounced the absence of will to know the truth in terror related cases- as well as Reporters Without Borders and Amnesty International, all rose against this bill pointing, among other things, to the clear violation of article 8 of the European Convention on Human rights, the “right for private and family life.”

The proposed surveillance bill is not only a threat on civil liberties but also to the already weak French economy. For instance, Polish born Octave Klaba, founder of France based OVH, Europe’s largest hosting provider recently threatened to leave the country and steer away his company’s next round of investment -worth €400 million- to spend it elsewhere. In his own words “this bill is about putting the whole of French society under surveillance” while drawing a parallel with the worst practices of the Soviet Union in his country of origin. Other companies like Alternet  did not wait and have already decided to leave.
By taking the mass surveillance and generalized suspicion path the government contradicts itself once again. Ever since Francois Hollande came to power, several steps were taken to boost French market shares in the global online economy. But how will French entrepreneurs manage to sell their products and services when their own government obliges them to violate the privacy of their clients?

France has a clear case of mass surveillance consequences to learn from. When former NSA contractor Edward Snowden made his revelations two years ago, the world discovered with shock the magnitude of the NSA’s global communications surveillance program both domestically and abroad, including towards its own allies.

Users were further outraged by the active collaboration between the NSA and major companies like VERIZON, Google, Yahoo, AOL, Microsoft and Youtube who had been handing them user private data. As a consequence and according to the Wall Street Journal, the clandestine NSA various surveillance programs, will cost the US cloud, hosting and outsourcing industry over $180 billion in lost business. Beyond the outrage of users who will no longer trust their service providers, it is the whole US economy that is being damaged.

In these times of recession and mass unemployment, starving public services and tougher competition from emerging economies, this policy makes no sense.

Maybe the current Valls Administration with an average age of fifty five is clueless, but the internet is not only a place to spend money and chat, but it is also a place of education, trade, business, self improvement, discussion, debate, dissent and where people build social ties, get married, entertain themselves and evolve as human beings. Given the large scale magnitude of Orwell like privacy violations, the fight against terrorism appears as a lame excuse.

After refusing to grant asylum to Edward Snowden -who revealed the US’ violation of France’s sovereignty and active spying on its citizens-, Francois Hollande and Manuel Valls have decided not to protect people’s privacy but to violate them further through a French version of the infamous US Patriot Act.

Not only is the current administration copying America’s worse legislations but it is also using the same methods to implement them. The shock experienced by the country in the wake of the January 2015 attacks is being exploited to forcibly pass the bill on surveillance just like 9/11 was used by the Bush administration to pass the Patriot Act without any debate.

Since French lawmakers are so prone to find their inspiration from the American model, three examples are enough to show us where we’re headed:

    • Section 215 of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorist investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. In other words, agents can show up in people’s homes or businesses and take away whatever they decide is related to their investigation, without having to prove it.

    • Section 206 of the Patriot Act, allows the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. Transparency and due process can wait.

    • Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, allows  the secret surveillance of foreigners even if they are not affiliated with a foreign organization.

Fighting terrorism by violating basic civil liberties will only lead us to the same excesses and abuses that were made legal under the US Patriot Act. The sad irony is that not so long ago, George W Bush ’s policies were heavily criticized for ignoring the rule of law and for his “cowboyish” approach to complex problems. But today, the very same country is about to make the choices he had made back then.

Asked on how to strike a balance between fighting terrorism and safeguarding civil liberties, Roger Smith, Political Sciences Professor at the University of Pennsylvania pointed to the grave errors  that allowed 9/11 to happen. According to him, terrorists did not succeed because of a lack of information but because of bureaucratic rivalries between intelligence agencies that refused to work together and the absence of coordination between them and immigration services. In his own words, “If we promote better information sharing, analysis and use, we can defend against terrorism without sacrificing civil liberties”

Are we just going to give up on what it took us centuries to acquire? What if tomorrow a widely discredited and unpopular government were given the means and the right to violate people's privacy and arrest them without due process? Are we just going to sign the death warrant of our basic rights starting with the one to have a private life?

Readers must not be mistaken. The war on terror is a duty and we owe our sense of security to the hundreds of dedicated operatives on the field. We do need our intelligence services to do their job, but we also need justice to prevail and protect us from abuses of power. Our fight against terrorism is way too important for us to let it become a justification for a failed administration's grip on power.

By allowing the passing of laws of exceptions and expanding the powers of a tiny and unaccountable few, we take the risk of becoming those we are fighting. We have more to gain by refusing to surrender to fear and by upholding our envied freedoms. So how about making our society stronger by protecting and granting more rights, more civil liberties, more brotherhood, more national cohesion and more justice? Giving in to terror by trampling on our core principles born after the French Revolution and the age of enlightenment, will only send France back to the darkest hours of its history. We need not look beyond the twentieth century to realize the grave mistake we would be making.

If we are willing to violate the spirit of our laws then nothing will keep them from turning against us. For, as Thomas Jefferson said it “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

(1) French Presidential Palace
(2) National Commission for the Control of Intelligence Techniques
(3) National Commission for the Control of Security Interceptions)
(4) State Official nominated by the President to act as non-legal counsel on behalf of citizens in a wider range of cases (constitutional issues, human rights etc…)
(5) National Council on Information Technologies and Freedoms

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