French Press, Lawyers, Attack New Domestic Spying Law in European Court

“Those Who Sacrifice Liberty For Security Deserve Neither. … Those who give up their liberty for more security neither deserve liberty nor security.” Benjamin Franklin.

France’s Association of the Court Press, that is reporters who cover trials and judicial investigations, are taking a new French law on domestic spying to the European Court of Human Rights saying the law violates their right to keep their sources secret.

The Paris Bar Association has joined the journalists in the lawsuit claiming it violates their right to attorney-client privilege, aka secrecy.

The law voted last June, and approved by the Constitutional Court in July, went into effect October 3. It gives the intelligence services the right to the massive collection of people’s private data, NSA style.

Under the new legislation, in theory, a commission appointed by the president must  be consulted before eavesdropping electronic surveillance is put in place, except for a state of “imminent threat,” in which case the commission is consulted afterwards.

The problem is France has been on its highest state of alert, that of “imminent threat,” since last January when employees at Charlie Hebdo were gunned down.

Also, this commission cannot block the government’s approval to spy on citizens.  Its role is only advisory.  (If it really disagrees, it can petition the Council of State, le Conseil d’Etat, a sort of supreme court for administrative justice which can over-rule the executive.)

The wording of the law is such that anybody could find themselves spied on and the data of all those around them caught in the web.  Such vague notions as “the prevention of violations to the republican form of institutions” is enough for a person to have their data and the data of all those they are in contact with, sucked up.

The law is not only meant to prevent terrorism, but also “organized criminality and delinquency,” “collective violence” which poses “a grave threat to public order” or even a threat to “economic, industrial or scientific interests.” That is why the Paris Bar, says the new law is based on two lies:

  • That it is aimed at protecting society from terrorism when all penal matters are concerned by the legislation.
  • There is no real judge in the text of the law to protect public freedoms, the Bar says “as the only judge authorized to do so is the judicial judge and here the legislature chose an administrative judge.”

A suspect can be spied upon and localized through his telephone and all his digital communications; his home, car and computer searched, his conversations (as well as those in the proximity) recorded in a café, train station, court room, by IMSI-catchers, a telephony eavesdropping device … that is to say all of his digital activities, as well as the digital activities of all those in his proximity. Such spying in a demonstration, for example, would allow the collection of a treasure trove of private data.

As one goal of the new law is to identify suspects hitherto unknown to the police, the legislation forces internet providers to transit activity through the intelligence service’s ‘Black Box’ whose algorithm is classified “Defense Secret.”  This legalizes the practice of fishing internet activity through key-words, for example, which means a reporter investigating ‘jihadists’ would trigger a signal, and get caught in the web. As a result, so would all his contacts. They would have all their meta-data recorded and never know, much like it is in the US, as the NSA whistle-blower, Edward Snowden, revealed.

The reporters fear their sources will dry up because the law makes it dangerous to meet or communicate with a journalist.

Of course, reporters are not above the law but the European Court has ruled that electronic surveillance of journalists can only be put in place once approved “by a judge or other decisional body” which is totally “distinct from the executive.”  The court added that there must “exist an imperative public interest over-riding the principle of the protection of journalistic sources.” (Sanoma Uitgevers BV vs Holland, 2010).

The new law allows the government to by-pass this ruling and, even if a request goes before the commission, this commission, named by the President, is not independent of the Executive.

The fear of terrorism,” says Pierre-Antoine Souchard, president of the Association of Court Press, “must not lead to forgetting our fundamental freedoms, in particular our freedom to inform.”

Attorney – client privilege is a well known right.  But lawyers, just like journalists, can easily get snared and their secret data, as well as that of all those in contact with them, collected without their knowledge.

It is of little consolation that you won’t even know you are being spied upon unless, of course, they arrest you. And even if you found out, the data collected is also classified “defense secret.” After all, the law was voted to legalize a practice that had been going on illegally for years but was being increasingly criticized.

It could take up to a year for the European Court of Human Rights to examine the complaint.  In the meantime, expect far fewer whistleblowers to step forward.