POSTED: 01:30 a.m. HST, Dec 15, 2013
PARIS - For all their indignation last summer, when the scope of the United States' mass data collection began to be made public, the French are hardly innocents in the realm of electronic surveillance. Within days of the reports about the National Security Agency's activities, it was revealed that French intelligence services operate a similar system, with similarly minimal oversight.
And last week, with little public debate, the legislature approved an electronic surveillance law that critics feared would markedly expand electronic surveillance of French residents and businesses.
The provision, quietly passed as part of a routine military spending bill, defines the conditions under which intelligence agencies may gain access to or record telephone conversations, emails, Internet activity, personal location data and other electronic communications.
The law provides for no judicial oversight and allows electronic surveillance for a broad range of purposes, including "national security," the protection of France's "scientific and economic potential" and prevention of "terrorism" or "criminality."
In an unusual alliance, Internet and corporate groups, human rights organizations and a small number of lawmakers have opposed the law as a threat to business or an encroachment on individual rights.
The government argues that the law, which does not come into force until 2015, does little to expand intelligence powers. Rather, officials say, those powers have been in place for years, and the law creates rules where there had been none, notably with regard to real-time location tracking.
"If this article does effectively expand the existing regime to adapt it to the missions and reality of our intelligence services, it especially reinforces oversight as compared with the current situation," Defense Minister Jean-Yves Le Drian told the Senate.
This argument suggests, analysts say, that the government has either staked out rights to a vast new range of surveillance practices, or acknowledged that it has already been collecting far more data, under far less regulated circumstances, than people seem to have been aware of.
Neither prospect is terribly comforting to the law's opponents.
"We feel that anything can be placed under the heading 'national security,'" said Climence Bectarte, a lawyer for the International Federation for Human Rights. The law, she said, expands the list of state administrations authorized to request electronic surveillance to include the Budget Ministry, for example.
"There should have been a parliamentary commission and a real public debate," she said.
The French intelligence agencies have little experience justifying their practices. Parliamentary oversight, for instance, did not begin until 2007.
The Association des Services Internet Communautaires, or sic, an advocacy group whose members include AOL, eBay, Facebook, Google, Microsoft and several top French Internet companies, discovered the new legislation essentially by chance.
"There was no consultation at all," said Giuseppe de Martino, sic's director and an executive at Dailymotion, the French online video service. "No one said anything about it to us."
The National Commission for Information Technology and Freedoms, a state administration meant to protect the rights and privacy of citizens, said it had not been consulted on the contentious elements of the bill, although it was asked to review other provisions.
The government denies any effort to shield the law from public scrutiny. The bill went through four votes in Parliament, noted one government official.
"Not exactly discreet, as maneuvers go," he said, speaking on the condition of anonymity because he was not authorized to speak publicly.
sic says the law could give authorities blanket rights to seize "all documents stocked in a 'cloud' service subscribed by a given Internet user," for instance. Currently, such a seizure would require a warrant, the group argued.
"We don't know what this is going to mean in practice," said de Martino, the group's director. "But now the doors are open."
French intelligence services are already reputed to be rapacious collectors of foreign industrial secrets, and there is some concern that the law could discourage international investment. Internet service companies worry that users may begin to turn away from the Internet or share their personal information less freely.
But Jean-Pierre Sueur, a senator from President Frangois Hollande's Socialist Party, said identical provisions had been in place since the passage of an electronic intercepts law in 1991.
"If they're angry about this, they ought to have been angry for 23 years," he said. The law creates "only additional guarantees," he said, and stricter rules for the 200,000 or so intercept operations conducted by French intelligence services each year.
He rejected calls for judicial oversight, saying, "In the context of the anti-terror fight, day to day, it's impossible."
Alain Juillet, president of the Academy of Economic Intelligence and a former intelligence director at France's foreign intelligence service, said the law's value was "that it puts a framework where there wasn't one before."
"Before, there was nothing, it was total freedom," he said.
But Laurent Borredon, a reporter for Le Monde, qualified that endorsement.
"If one can reproach the parliamentarians for something," he wrote last week, "it's to have regulated the tip of an iceberg whose depth we're only barely beginning to measure today."
Scott Sayare, New York Times