Computers, Privacy & the Constitution

Terrorism and France's "Patriot Act."

  -- By MatthieuWharmby - 30 Apr 2015  


 The "Charlie Hebdo" incidents have exposed the flaws of the French intelligence system. After complaining about the U.S.'s NSA spying on European citizens, the French government asked the U.S. for surveillance data to locate terrorists at home. The French government now takes a "tough" stance not so different from post-9/11 discourse, and proposes a law allowing mass surveillance of online activity throughout the country. France's "centralist" tendencies are once again put to work, this time to restrict privacy and freedom in the name of safety. 

The surveillance law will, among other things, require hosting providers to install hardware on their servers, enabling the authorities to track suspicious meta-data. The law, while aimed at enhancing the safety and freedom of French citizens, may actually restrict freedom by allowing invasions of privacy.  

The French Surveillance Law Goes Against Its Main Objectives

The new law raises several concerns. I will examine each of these concerns from least to most significant.  

Economic Concerns in the Political Debate

It came up in the French media that some businesses were threatening to migrate abroad, or not come to France whatsoever. This is a credible concern as online businesses can freely move to countries more protective of privacy, such as Canada. Hosting providers themselves have threatened to install their servers elsewhere if the law were to pass (See the interview of OVH's founder Octave Klaba, in Les Echos, 04/10/2015). On the whole, however, this is a secondary issue which will doubtless feed political debates but does not touch on the core of the issue, privacy.  

A Faceless Bureaucracy Eluding Responsibility

There is a second concern about the way the law is going to be administered. Most likely, it will be governed by administrators, sheltered from judicial review by secrecy and administrative discretion. Who will decide who to spy on? Like in many other administrative matters, the faceless bureaucracy may avoid any responsibility or liability connected to the mishaps of mass surveillance.  

Potential Misuse

Through the new law, a system of mass surveillance may be put in place. The government will attach black boxes to data servers, and will be able to collect whatever information it pleases. Today, the government argues that mass surveillance is necessary to fight against terrorism. On the long term, however, this system of mass surveillance will remain. What it will be used for, or against? A faceless bureaucracy will control, and accountability will be sparse if even existent. The black boxes may be used to collect information about whoever the government pleases, and it may not be only potential terrorists.  

Incompatibility Between the Goals and the Method

The goal of the new law is to provide more safety and freedom to French citizens. But the methods used to provide it will only restrict freedom. The law would turn many actors and businesses into police informants. It might also be ineffective in fighting terrorism, since the government can hardly assert its territorial authority on the Internet, which is in essence amorphous and borderless. While terrorism will strive on foreign servers, French citizens as a whole will be subjected to invasions of privacy in a way most restrictive of freedom.

The Government Advances Unconvincing Justifications to the Surveillance Law

 ---+++ Regulation of an Already Existing Surveillance Program Advocates of the new law mentioned that surveillance of online activities has long been going on in France, outside of any legal framework. The new law only attempts to put a framework around governmental surveillance, and was submitted to four successive votes in the French parliament (Le Monde, 04/16). Therefore, it is a step towards democratic progress rather than a gradual slip towards tyranny.  

There Can't Be Efficiency Without Reduced Fairness

Advocates of the law have also argued that judicial oversight would undermine the rapidity and efficiency of policing. Terrorist organizations are supposedly very flexible and quick to adapt. Thus, government surveillance should be able to react quickly as well.  

Surveillance Will be Subject to Oversight

A commission has been put in place to oversee the government's surveillance activities. The Commission will include representatives from both houses of Congress as well as members of the highest judicial courts (the Conseil Constitutionnel and the Conseil d'Etat, equivalents of the U.S. Supreme Court respectively in general and administrative matters). They will have the right to approve of any surveillance attempt and will be able to investigate and question authorities on their use of surveillance.  

Anonymity and Specific Targets, Rather than the Population as a Whole.

The government also argued that, "unlike the Patriot Act," (, Apr. 17, 2015) the law will only enable authorities to first look for familiar patterns in meta-data, and then identify the individuals associated with the IP addresses involved in those patterns. Therefore, it will not mean mass surveillance of law-abiding citizens.


The government's arguments do not respond to the major concerns raised by the law. Those concerns are deeper than simple matters of efficiency and oversight. Moreover, the argument that the law is only providing a framework around longstanding surveillance of citizens seems to imply that surveillance is inevitable, and that the most law can do is to testify in writing of the existence of a surveillance program.

If the surveillance law really was meant to be a framework for governmental surveillance, it would restrict governmental surveillance, and put a cap on the growing online surveillance activities that have been going on in France. This is perhaps the kind of law that legislators should enact. If laws cannot really have a role in controlling the Internet, at least they should keep national governments under control.


Webs Webs

r2 - 30 Jun 2015 - 14:23:54 - MarkDrake
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