Proposed Legislation in France Would Significantly Expand Surveillance Practices

Clara Spera
Wednesday, June 10, 2015, 2:30 PM

As the United States reigns in its surveillance practices, France is expanding its own.

Published by The Lawfare Institute
in Cooperation With

As the United States reigns in its surveillance practices, France is expanding its own. News broke in early May that France’s lower house of parliament — l’Assemblée nationale — passed a law that would, according to New York Times coverage, give French authorities “their most intrusive domestic spying abilities ever.” Yesterday, the country’s upper house — le Sénat — voted to pass its version of the bill, 251-61. Now, the two versions of the bill must be reconciled before it can officially become law.

The bill would give French intelligence agencies power to monitor French citizens’ domestic and foreign communications, and requires little assistance from internet and phone providers. In the key bulk data collection provision of the law, instead of requesting data from the providers, the bill would allow the installation of government hardware and software at internet and phone data centers. These devices would run algorithms designed to identify patterns suggestive of terrorist activity. The language of both versions of the bill is deliberately broad; for example, both versions list multiple grounds on which intelligence agencies can propose enhanced surveillance (like installing hidden microphones in a car or in a home), justifications that range from “protecting national security” to preventing activity that could “threaten the public peace.”

Usually, in the French legislative process, once one house drafts and passes a bill, the text gets sent to the other house, often sparking a lengthy back-and-forth, with multiple rounds of editing on each side. This situation is different. After the attack on the Charlie Hebdo office in January, French Prime Minister Manuel Valls declared the bill to be a matter of urgency, meaning the bill is going through a “fast-track” parliamentary procedure. After the Assemblée nationale passed its version of the bill, the Sénat was given only one round of review, which began last week, on June 2. And because the Sénat has made edits to the bill sent to it by the Assemblé nationale, after a Sénat vote in favor of its version, a multi-party commission must meet to fuse the two texts.

Though the two texts of the proposed legislation are very similar, there are some notable differences between the two that the commission will have to reconcile. Some of the most noteworthy:

1. The Sénat’s version of the surveillance bill expands “the exhaustive list” of the grounds by which surveillance can be justified. In the Assemblée nationale bill, the list of justifications to allow authorization of intelligence gathering is limited to issues of “national security, the essential interests of foreign policy, essential economic or scientific interests, the prevention of terrorism, preventing dissolved criminal enterprises from rebuilding, the prevention of organized crime, and the prevention of collective violence that could seriously threaten the public peace.” (Emphasis added.) On the one hand, the Sénat’s version hones in the lower house’s text by eliminating the last, vague category dealing with the “public peace,” but, on the other, the Sénat’s version expands the scope for French surveillance by deleting “essential” before “economic and scientific interests,” and also adding the protection of “national independence” and “territorial integrity” to the list. The Sénat’s version also develops the “foreign” policy prong, saying that, along with the essential interests of foreign policy, surveillance is justified to enforce international or European treaties or commitments to which France is a party, as well as to prevent “all forms of foreign interference” to those international or European commitments.

2. The controversial “black boxes” — a mechanism by which the government can scoop up raw data or metadata from internet servers, without having to go through the providers — were a contentious point in the Sénat and, earlier, at the Assemblée nationale. The Sénat version of the bill adds language that would safeguard French citizens’ privacy. The Sénat’s bill indicates that any metadata collected would be destroyed sixty days after collection, “except in the cases where there exists serious and credible evidence of the presence of a terrorist threat.” The Assemblé nationale version would allow the government to hold on to the data for twelve months, with a few exceptions. The subject is controversial: The founder of one French internet company said on NPR yesterday that, if necessary, he would move his data center outside of France to avoid black box installation on his outfit's servers.

Whichever way the exact language of the French bill will come out, it will be a far cry from the United States’ most recent legislative activity concerning government surveillance. While the USA FREEDOM Act effectively ends bulk data collection, the French bill provides a resounding endorsement of the practice. And while the USA FREEDOM Act and the Foreign Intelligence Surveillance Act require prior court approval before certain intelligence surveillance may go forward, the French law allows the French government to essentially demand compliance from phone and internet companies without judicial oversight.

To be sure, this is not the end of the line in the legislative process — something that ought provide at least some comfort to those worried that the new French law will allow for unconstitutional overreach. Unlike in the United States, France’s process contains a constitutional check before legislation takes effect. The Conseil Constitutionnel — France’s highest constitutional authority — has the power to review laws in the abstract, prior to their entry into force. It is all but guaranteed that, once a finalized version of the bill is settled on, the Conseil Constitutionnel will step in; but, of course, there’s no guarantee that the Conseil indeed will strike down any of the legislation's provisions.

Clara Spera is a 3L at Harvard Law School. She previously worked as a national security research intern at the Brookings Institution. She graduated with an M.Phil from the University of Cambridge in 2014, and with a B.A. from the University of Chicago in 2012.

Subscribe to Lawfare