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27.11.2015

France: new anti-terror measures legalised just days before Paris attacks

Elisabeth Quillatre

Only a few days before the series of co-ordinated terrorist attacks that occurred in Paris and its northern suburb, Saint-Denis, on 13 November 2015, the French Government decided to legalise the surveillance of international electronic communications by French intelligence services with the adoption of a new Bill on international surveillance.

 

Once again, the government initiated a fast-track procedure as it did for the adoption on the Bill on Intelligence. Consequently, less than two months were necessary to adopt the final text: adopted at first reading by the National Assembly on 1 October 2015, the Parliament adopted the final text approved at the end of the joint committee debate held on 5 November 2015.

 

The purpose of this Bill is to legalise existing practices of international communications surveillance by creating a specific legal framework. International communications may be described as communications with at least one end – either transmission or reception - located beyond French borders. The Prime Minister or his delegates shall deliver a prior authorisation to the intelligence services to monitor such communications.

 

Unlike the interception of security there is no need to obtain a prior approval from the newly created French Authority of control, the Commission Nationale de Contrôle des Techniques de Renseignements (CNCTR), in addition to the Prime Minister’s authorization. Once the authorisation is delivered, intelligence services may monitor both connection data (containers) and correspondence (content).

 

These provisions were originally introduced in the French Bill on Intelligence adopted this year in reaction to the Charlie Hebdo attacks on 7 January 2015, but had been rejected this summer by the Constitutional Council of France, the highest constitutional authority in France (Conseil Constitutionnel), which is in charge of ensuring that the principles and rules of the constitution be upheld, as reported by ECPMF in August 2015.
 

In its decision, the Constitutional Council highlighted a "negative incompetence of the legislator", meaning that the legislator provided the enactment of certain rules governing the technique of surveillance to the regulatory power whereas such determination was entrusted solely to the law. It is interesting to note that the ground for the censorship was not an infringement of rights and freedoms guaranteed by the Constitution. However, the new Bill on international surveillance is highly criticised by several human rights associations as it is seen as legalising mass surveillance.

 

On 12th 2015 the new measure was adopted. The Constitutional Council will verify the conformity of the new provisions with the supreme legal authority, the Constitution, before it comes into force.

Elisabeth Quillatre is a legal advisor in Data Protection and IT Digital law. She obtained her law degree from Sorbonne Law School in 2007 and is teaching regularly in the same university.


Read more:

The new Bill on international surveillance is available in French language here.

Further information on the French Bill on Intelligence can be found in English language:
Élisabeth Quillatre, The new Bill on intelligence: toward a French Patriot Act Act II ?, EDPL (European Data Protection Law Review) Volume 1 Number 2 (http://edpl.lexxion.eu/issue/EDPL/2015/2)



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