Surveillance Without Borders
Right after Islamist militants attacked Charlie Hebdo and a kosher grocery in January, leaving 17 people dead, we swore we would not fall into the surveillance trap. The few voices in France clamoring for a security overhaul were drowned out by the “we are not afraid” slogans of crowds rallying in defense of free speech. Journalists, lawyers and politicians reminded everyone of the excesses of America’s Patriot Act. This was not the road France would take.
Yet four months later, on May 5, the lower house of Parliament passed a bill giving the nation’s intelligence services sweeping surveillance powers, including the massive collection and analysis of metadata. Next month the bill will go to the Senate, and the measure’s sponsors are confident it will become law by July.
Meanwhile, across the Atlantic, key provisions of the Patriot Act are set to expire by June 1. But the mood is already shifting: On Wednesday, the House approved a bill changing the Patriot Act to prohibit the government’s mass collection of Americans’ phone records. This follows a May 7 ruling by a federal appeals court in New York that the National Security Agency’s collection of such data is illegal. These steps come just two years after Edward J. Snowden revealed the giant secret surveillance program to the world.
The irony of the new French mind-set has not been lost on some U.S. liberals, while hawks have seized on the French bill to try to bolster their case for continued mass surveillance. But when American right-wing commentators praise the French, we know something’s fishy.
So, is France having its Big Brother moment? Not so fast. There are major differences between the broad legislation rushed through Congress after 9/11 and this text. This is not a legislature declaring a global war on terror, or allowing for the indefinite detention of aliens believed to be potential terrorists. It is not voting on an anti-terrorism bill, but on a long overdue legal framework for the activities of the intelligence services. Strangely enough, as a parliamentary report noted in 2014, France is “the only Western democracy without a legal framework for its intelligence services, exposing its agents to a legal vacuum, and posing potential threats to the fundamental liberties of its citizens.”
And this bill has been in the works for two years. The government took advantage of the terrorist attacks in January to invoke a procedure to accelerate the process by limiting both houses of Parliament to a single reading of the measure. Real debate on the issue has instead taken place outside of the legislature.
It has been a fierce and public debate. The bill’s opponents — civil liberties groups, environmental parties, the data protection agency and tech companies — criticize it for allowing “mass surveillance” without sufficient safeguards. To counter that argument, the independent committee in charge of overseeing data collection has been enlarged from nine to 13 members, concessions have been made to the tech sector, an amendment protecting whistle-blowers in the intelligence agencies has been added, and President François Hollande has promised to ask the constitutional court to review the law once it has been passed. In turn, critics have hinted that they may appeal to the European Court of Human Rights, which has a strong record of protection of privacy.
The bill does have its weaknesses: its scope, which goes far beyond terrorist activities; the lack of proper judiciary control; the speed with which it is being rushed into law; the lack of any mention of a crucial encryption tool that has been used secretly since 2007; and the automated algorithms used to select suspicious patterns. All of these elements raise serious issues. One doesn’t need to know Orwell’s “1984” by heart nor to watch the film “Minority Report” over and over to sense the dangers.
So, given what we have learned since Mr. Snowden fled his country, how can a European democracy legalize surveillance on this scale?
France has a long history of Islamist terrorism going back to 1986 and 1995; it did not wait until 2001 to develop its own police and judiciary response, which was heavy-handed enough to spare the country from new deadly attacks until 2012. Intelligence gathering was part of this response. “I guess the French credit the police and the courts for protecting them from a number of dangers,” Pierre de Bousquet, then head of the domestic intelligence service, told me in an interview in 2005. Mr. de Bousquet claimed that, thanks to these actions, planned attacks on the soccer World Cup in Paris in 1998, on the Christmas market in Strasbourg in 2000 and again in Paris in 2003 had been prevented. He was already concerned by the new face of homegrown jihadism: “Younger, rougher, more radicalized.” Five young French jihadists had died fighting in Iraq, he noted.
Early this month, the official number of French jihadists killed in Syria and Iraq passed 100. The government estimates that about 1,000 French radical Islamists have joined the battle in Syria and Iraq. This was not a factor when the Patriot Act was passed in America. It is now a painful issue within our societies.
The French sociologist Didier Bigo says that electronic surveillance is a way of dealing with terrorism without having to address the political problems of the banlieues and of Western intervention in the Middle East. “Technological intelligence is a depoliticization tool,” he told the newsmagazine L’Obs.
France is also a country that does not shy away from the use of force abroad and loves to parade its armed forces on Bastille Day. Mr. Hollande was the first European leader to forgive President Obama after the Snowden revelations, on a visit to Washington in February 2014. He has also kept silent about the latest snooping scandal, after revelations last month that the N.S.A. had been spying on French officials and Airbus Industries, courtesy of the B.N.D., Germany’s intelligence service.
Welcome to the murky new world of surveillance without borders. Chancellor Angela Merkel’s world where “friends don’t spy on each other” now sounds so 20th-century; in today’s world “friends do spy on each other’s friends.” Citizens have grown so accustomed to giving away big data for private use that governments using metadata to protect them from terrorists may not seem so wrong after all. Technological prowess makes the line between privacy and security ever more unclear, and the job of checks and balances ever more complex — something Edward Snowden, about to start his third year somewhere in Moscow, knows all too well.
http://www.nytimes.com/2015/05/18/opinion/surveillance-without-borders.html?_r=0
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