On Tuesday, Dec. 10, at a second hearing, the Senate voted on the text of the law for military programs for the 2014 to 2019 period.
This text is identical to the one voted on during the first hearing, on Dec. 3, in the National Assembly. Therefore, the bill has passed, and, within it is the highly contested Article 20. This article focuses on access to “information or documents processed or preserved by” the networks of web providers or electronic communications services, “including the technical data relating to the identification of numbers of subscription or connection to electronic communications services.” It indicates that such information and documents “can be collected on solicitation of the network and transmitted in real time by the operators.” What’s more, the debate around this article continues in the hope of seeing it result in a referral to the Constitutional Council by lawmakers.
Some claim to be able to put an end to this debate by affirming that the article would not be more than a cosmetic trim for existing provisions, ensuring their readability, or even that it would act more as a monitor for certain rights. According to them, opposition comes only from misinformation disseminated by the Association of Community Internet Services, some of whose members are major collectors and exploiters of personal data.
We confirm the government’s inaction in protecting its own citizens from the severe violation of their fundamental rights through surveillance. Far from granting asylum to Edward Snowden, for a time, it transformed itself into an auxiliary police at the behest of the United States during the prohibited flyover of the Bolivian president’s plane over our territory. Since then, France has agreed for the European Council to defer to 2015 the adoption of new European regulations on the protection of data.
Have they suspended the agreement on the sphere of security — the Safe Harbor Agreement — which allows the transfer of personal data to the United States, as the member states have the right to do when facing such a clear violation? And in the end, here, we have adopted a text that opens the door to the same abuse as the 2008 FISA Amendment Act, the legal basis invoked by the NSA to justify the PRISM program.
Article 20 marks a trend toward a system where the information from each person’s communications can be captured via a simple administrative decision, without judicial warrant or effective control, and decision-making by a judge or other independent authorities. By putting together the provisions of the Act of 1991 and those of the anti-terrorism act of 2006 — a provisional act of exception that has become permanent — and adding to them the “solicitation of the network and transmission in real time,” by including new forms of geo-location data, we change the possible scope of surveillance.
The guarantees invoked as reassuring are markedly weak. They are far inferior to those that existed for U.S. citizens under the FISA Amendment Act, which, however, have not prevented huge abuses against them. Finally, one of the members of the National Control Commission for Security Breaches — an administrative authority entrusted with the task of an executive power — has played a key role in the adoption of Article 13, as chairman of the Commission on Laws in the National Assembly, draftsman and propagandist of this text, which extends the powers of the CNCIS and its scope of activity. What could we think with regard to the separation of powers?
There was a time when we felt that those services charged with security [protection] worked honestly, even though, sometimes, authorities abuse their powers for political reasons or to cover some fishy business. The opening up to a regime of generalized surveillance broke this relative confidence. The Constitutional Council will hopefully censor this infringement of fundamental rights. The invocation of security, as vague as extensible here, must not prevent us from thinking or defending liberty.