On 5 May 2015, the French National Assembly adopted a Bill aiming at reinforcing state surveillance. Several internet players as well as politicians have already raised serious concerns regarding the adoption of this Bill.  Many are calling it ‘the French Patriot Act’, despite major differences with the US Patriot Act as set out below.

An extensive scope of application

Although the Bill was initially put forward by the French Government with the main aim of fighting terrorism, its scope reaches far beyond this. Indeed, the Bill specifies that the surveillance services can be authorised to exercise their mission where one of the following public interests is at stake:

• National security;
• France’s essential foreign affairs interests and the implementation of its European and international obligations;
• France’s economic and scientific interests;
• Prevention of terrorism;
• Prevention of groups banned under French law from regrouping or continuing to exist;
• Prevention of organised crime and delinquency;
• Prevention of public order offences causing serious breach of the peace.

In practice, this means that surveillance measures could be implemented not only to prevent terrorism but also where there is an intent to defend the economic and scientific interests of France or its essential foreign affairs interests. Such a scope of application is obviously very broad. It would require some clarifications in particular regarding the meaning of “France’s essential foreign affairs interests and the implementation its European and international obligations” or of “France’s economic and scientific interests”.

Extensive surveillance measures

It is not only the scope of application of the Act which is far-reaching but also the surveillance measures which could be implemented as a result. Indeed, where one of the public interests identified above is considered to be at risk, very intrusive surveillance measures could be implemented.  These range from covert live monitoring of IT use and the installation of microphones, cameras and spying software to the setting up of “technical proximity devices” i.e. antennae which could capture conversations taking place in a defined surrounding area.

The way the Bill is currently drafted reveals that such measures could be installed without the prior authorisation or knowledge of the individual or company under such surveillance. Equally, the Bill also enables the collection of technical connection information strictly necessary to identify a terminal equipment as well as geolocalisation information. However, indirectly, the installation of spying software or monitoring tools to monitor an individual’s activity may enable the surveillance services to access documents or content hosted on companies’ servers.

In addition to these measures, and for the sole specific purpose of fighting against terrorism, the Bill also provides that telecom and internet service providers may be requested to install systems which would enable the identification of terrorists through the information and documents they access. This would in fact means that “black boxes” would be installed in telecom and internet service providers’ environments and would enable the anonymous monitoring of all web users’ activities on the internet in order to identify actions suspected to be in direct or indirect relation to acts of terrorism. Where suspicion arises, the Prime Minister may decide to waive anonymity. As a consequence, this means that all business related communciations and systems could also be subject to monitoring as far as their internet service provider will have been requested to install such a black box. This shows the extensive impact of the monitoring that this Bill may lead to.

The above elements explain the current fears expressed by many regarding the risks of creating a mass surveillance program.

Absence of a powerful watchdog

One might think that in order to counterbalance this very extensive scope of application, the Bill would propose to set up a very strict procedure in order to monitor the application of the Act.

Instead of a powerful watchdog, a new commission with non binding powers is created. This commission is named the National Commission Controlling Surveillance Techniques (the Commission) and its role is to propose recommendations to the Prime Minister. Any request for surveillance action is brought before the Commission by a formal request to the Commission from the Home Secretary, the Minister of Defence, or the Minister of Economy. Given that the Commission’s recommendation is non-binding, and that the Prime Minister has the final decision on whether or not to implement the surveillance measures, the lack of counterbalance regarding the decision is uncertain. Nevertheless, where the Commission’s recommendations are not followed or where it considers that the follow up decision taken by the Prime Minister is insufficient, the Commission can bring the case before the ‘Conseil d’Etat’ (i.e. the highest administrative jurisdiction). One could regret that there is no judicial control of such procedure which would have guaranteed to a larger extent the impartiality of the decisions taken.

What’s next?

After its adoption with a huge majority at the French National Assembly on Tuesday 5 May, the Bill is now going before the Senate where it will start being reviewed end of May. The Government has placed the Bill in a fast track procedure (so-called ‘procedure accélérée’) which means that after the Senate’s vote on this Bill, the Joint Committee of the French Senate and National Assembly (composed of 7 members of the National Assembly (deputies) and 7 Senators) shall then reconcile both National Assembly’s and Senate’s positions. In case of disagreement within the Joint Committee, the National Assembly will have the last word on the text.

It has to be noted that the French President, François Hollande, has already announced that the text will be subject to review by the French Constitutional Court in order to assess the extent to which the Bill’s provisions are in compliance with the French Constitution. In addition, 75 French deputies have announced on Tuesday 5 May that they will also refer the Bill to the French Constitutional Court.

We can anticipate that the Bill will be adopted in the end, but it is very likely that at least part of the Bill will be deemed unconstitutional by the French Constitutional Court due to the disproportionality of the scope and of the proposed measures of surveillance which would impact individuals’ fundamental rights and privacy.