Parliamentarians began drafting the bill in July 2014, in order to update its legal framework for intelligence services to the digital age, and the government accelerated the procedure following the extremist attacks in Paris in January.
Jérémie Zimmermann, a co-founder of La Quadrature du Net, an online civil liberties group opposed to the measures, responded to some of the main issues about the proposals.
According to Jean-Jacques Urvoas, the Socialist MP who drafted the bill, France is the only Western country without a law to define the framework for intelligence gathering, obliging intelligence services to work in legal “grey zones”.
“This law will legalise practices that are probably happening right now,” Zimmerman said. “Today, the secret services are working illegally. Is the only solution to legalise what they are doing? Of course not. What they are doing should be forbidden. There is a need for a law, but there is also a need to ban practices that are by essence incompatible with democracy, such as the mass surveillance that is to be imposed by this law.”
The law would allow the use of so-called IMSI-catchers and black boxes, devices that would respectively capture and analyse metadata sent over telecommunication networks. The government claims terrorists have specific behaviour patterns that can be identified by these surveillance methods.
“IMSI-catchers are fake phone antennas that capture every phone in a radius of the antenna – it’s like a fishing net that will harvest all communications in a certain area,” Zimmermann explains. “Black boxes are electronic spies within the network that will collect data potentially about all communications of all citizens in order to detect patterns of behaviours.
“The New America Foundation, a right-wing libertarian think tank, did a serious study that found that less than 1 per cent of thwarted terrorist attacks were foiled with the help of mass surveillance. We know mass surveillance does not help in fighting terrorism, while we do know from [NSA whistleblower Edward] Snowden’s revelations that it is being used for political and economic espionage.
“[IMSI-catchers and black boxes] change surveillance from a tool for democracy – when it is targeted, proportionate surveillance within control of the judicial authority – into a tool for power. No government with access to such a treasure trove of information will refrain from using it against political opponents, protesters, people who organise to make other opinions heard in society.”
The law would create a new commission with expanded powers to act as a watchdog on how intelligence services are working. The government is also imposing judicial safeguards.
“This commission is a red herring, it is an illusion,” Zimmermann says. “The whole point of the law is to remove control of surveillance from the hands of judicial authority. In a democracy governed by the rule of law, only the judiciary, because of its indifference and impartiality, is able to restrict fundamental freedoms. In this case, control will be removed from the judiciary and placed in the hands of a commission with very limited power, which will not be able to access in real time the collected data to see what is being done, nor the source code of the algorithms that will detect those behaviours, and that in the end will be bound to whatever the prime minister will accept or not.”
The law is certain to pass after three days of fast-tracked debate in France's lower parliament, with both the government and opposition in favour.
“There might be a challenge in the Constitutional Court. Citizens have to ask their elected representatives, if they do not vote against the law, that they commit themselves to later on sign a challenge to the Constitutional Court. If they are so confident there is no hard to fundamental freedoms, and they will vote it, then they will have the courage to get the highest court to validate their claims. But we are convinced that this law massively violates freedoms.”