[A2k] Legal Action against the French Surveillance Law
La Quadrature du Net
contact at laquadrature.net
Wed May 11 07:53:23 PDT 2016
TAGS: SURVEILLANCE, FRANCE, WIRELESS COMMUNICATION, MANUEL VALLS, FRANÇOIS
HOLLANDE, BERNARD CAZENEUVE
La Quadrature du Net -- For immediate release
LEGAL ACTION AGAINST THE FRENCH SURVEILLANCE LAW
Paris, 11 May 2016 -- THE _EXÉGÈTES AMATEURS_ , THE LEGAL TEAM OF LA
QUADRATURE DU NET, FDN  AND FFDN , JUST ADDED NEW DOCUMENTS TO ITS
ACTIONS BEFORE THE FRENCH COUNCIL OF STATE AGAINST THE SURVEILLANCE LAW AND
ITS DECREES. ALL THE ARGUMENTS AGAINST THIS DANGEROUS LAW ARE LAID OUT
HERE. THE STRATEGY IS MOSTLY BASED UPON THE EUROPEAN COURT OF JUSTICE'S
(ECJ) CASE LAW. A PROVISION OF THE SURVEILLANCE LAW THAT REMAINED
COMPLETELY IGNORED DURING THE PARLIAMENTARY DEBATES IS NOW THE SUBJECT OF A
PRIORITY PRELIMINARY RULING ON THE ISSUE OF CONSTITUTIONALITY (_QPC_1
)...LET'S LOOK INTO THAT.
THE ANALYSIS BELOW IS PUBLISHED ON _THE EXEGETES_'S WEBSITE .
In June 2015, French newspaper _Le Figaro_ titled: "Opponents to the
Surveillance Law make their last-ditch effort"2 . Not so! Since the
partial validation of the Surveillance Bill by the French Constitutional
Council we have been working to lodge a complaint with the French Council
This Friday we filed several new documents with the help of the
Spinosi-Sureau law firm. These documents detail all of our arguments
against French surveillance. Three years after the start of the Snowden
revelations, while the Rule of Law buckling a little more each month under
the battering of the Police State, facing with this political bankruptcy,
we are turning to the judges to enforce our fundamental rights.
WHAT IS THE SCOPE OF THESE ACTIONS?
On 30 November 2015, the Federation of non-profit Internet service
providers (FDN Federation), La Quadrature du Net and the French Data
Network3  (FDN), commenced proceedings against the first three decrees
implementing the Surveillance Law.
Later on, following the publication of two additional decrees, two new
actions were introduced (one of which was filed by Igwan, an associative
Internet access provider in the Antilles, member of the FDN Federation).
The goal of these actions is to demonstrate that those five decrees are
contrary to our fundamental rights. To do so, we directly question the
validity of the law they are meant to implement. This enables us to
question the entire Surveillance Law.
WITHIN WHICH CONTEXT DO THESE ACTIONS TAKE PLACE?
This strategy is a direct extension of the one initiated after the adoption
of the law in June 2015. At that time, we sent to the Constitutional
Council an amicus curiae including numerous constitutional arguments
against the law. The current action before the Council of State carries on
this work, now with arguments based on the Charter of Fundamental Rights of
the EU and the European Convention on Human Rights. 
In parallel with our efforts, many complaints have been lodged before the
European Court of Human Rights (ECHR) by organisations of journalists and
lawyers. We strongly welcome these legal actions perfectly complementary to
ours - our goal being primarily to obtain the enforcement of European law.
WHERE ARE WE IN THE PROCEEDINGS?
The first applications initiating the proceedings date back five months.
They were only intended to meet the time limits for referring cases and
therefore included a small portion of the arguments to raise.
We have developed these arguments over these last five months and submit
them today to the French Council of State as supplementary statements. For
their part, the French Prime Minister and the Defence Minister have already
begun to respond. Hence, the exchange of arguments will continue.
WHAT ARE OUR ARGUMENTS?
Put it simply: our strategy is to mobilise the European Court of Justice's
(ECJ) case law, which has made landmark rulings concerning privacy
protection these last months (see in particular the Digital Rights case
 and the Schrems case ). With this in mind, if the French Council
of State were to refuse to directly apply this case law, we would suggest
it several preliminary rulings that it would then have to be referred to
All our arguments can be found in our writings , but these documents
are voluminous (for example the main document is around 90 pages). Our goal
here is to give a synthetic overview.
It was already one of the arguments raised in the amicus brief  that we
filed before the French Constitutional Council last summer: the
Surveillance Law allows the services to spy on the population for various
reasons which are neither sufficiently restricted nor precise enough (the
main interests of France's foreign policy; the accomplishment of its
European and international commitments; its main economical, industrial and
scientific interests; preventing the organisation of illegal or
incompletely declared demonstration; or preventing access or use of
narcotics for personal consumption).
Being secret surveillance measures, this inaccuracy is extremely worrying
and is, in our opinion, directly in violation with the Schrems ruling,
which requires in particular _"purposes which are specific, strictly
restricted and capable of justifying the interference"_.
ACCESS TO COLLECTED INFORMATIONS
The law merely regulates the conditions of data collection (collection
authorised not only for intelligence services but also for dozens of other
administrative authorities, whose actual aggregate exceeds 45 000 persons).
However, it says nothing about how access to informations gathered is
organised internally, paving the way for arbitrary uses. This lack of legal
framework is clearly contrary to the ECJ's Schrems case .
SO-CALLED "INTERNATIONAL" SURVEILLANCE
The provisions on international surveillance legalise the vast Internet
traffic collection system implemented by the DGSE (French foreign
intelligence services) since 2008 to catch up with the NSA and the GCHQ in
this area. It is very large-scale surveillance: the Prime Minister is to
designate the submarine cables and other networks on which the DGSE can
connect and authorises it to set up mass interceptions of the traffic.
This indiscriminate surveillance of communications constitutes a frontal
attack on the Rule of Law that is contrary to the case law of the ECJ and
the ECHR, which require to specify the existence of a reasonable suspicion
against the persons whose communications are intercepted. On this matter,
the Dutch MEP Sophie in't Veld just challenged  those provisions before
the CNCTR4 .
Finally, as the French Constitutional Council has validated, citizens under
surveillance have no legal remedy to challenge the so-called international
surveillance measures, which is blatantly violating European conventions.
EXCHANGES OF DATA WITH FOREIGN INTELLIGENCE SERVICES
The Snowden documents have shown the growing importance of the cooperation
agreements between Western intelligence agencies, which provide massive
exchanges of data between services. But the Surveillance Law prohibits the
oversight Commission, the CNCTR, access to data held by the French services
that has been transmitted by their foreign counterparts. This way, it also
prevents any oversight by the Council of State.
As we have put in our writings, "the British GCHQ and the German BND can
collect the communications of French residents in application of provisions
which, in their national law, fall under the surveillance of international
communications, and can transfer them to their French counterparts of the
DGSE, who therefore escape any supervision and control over the use of such
personal data." By disarming the CNCTR's oversight, the Surveillance Law
allows services to bypass the meagre safeguards applicable for national
surveillance and deprive citizens of the right to an effective remedy
against the collection and use of this data.
Last year, during the parliamentary debate of the Surveillance Law, the
"black boxes" sparked heated debates. They did so for a good reason: the
intelligence services can now force Telecoms operators and hosting
providers to install tracking devices on their infrastructure for real-time
scanning of all traffic, hoping to identify "weak signals" of terrorist
activities . These "black boxes" would thus imply to scrutinise the
communications of nearly the entirety of the population.
Again, this indiscriminate surveillance is contrary to EU law. But this
provision also violates the spirit and letter of the 2000 European
directive on the information society services (eCommerce Directive ),
which prohibits national authorities from imposing on Telecom operators and
hosting providers "a general obligation [...] to monitor the information
which they transmit or store, nor a general obligation actively to seek
facts or circumstances indicating illegal activity".
OVERSIGHT BY THE CNCTR
This has been said time and again: the CNCTR only issues non-binding
opinions on the permissions that the French Prime Minister delivers to the
intelligence services to recourse to surveillance measures. Because this is
optional, it carries tangible risks of abuse. By the same token, last year,
the president of the former Commission highlighted that almost one quarter
of negative opinions issued during the first term of 2015 had not been
followed. However, European case law is clear: it requires collection and
secret use of personal data to be subject to prior authorisation by an
independent entity. Such is not the case in France.
The right to a judicial remedy before a special chamber of the Council of
State was presented as a major advance provided by the Surveillance Law.
This is actually a fool's game, which brings reason of State and its
secrecy in French law without providing the minimum guarantees necessary
for a fair trial.
Indeed, all the documents submitted by the administration during the
proceedings remain secret; the plaintiff and his/her lawyer will not have
access to them. The jurisprudence of the Council of State itself will
remain secret, and it will be impossible for an individual to know whether
he/she was under surveillance. Again, these special rules are contrary to
European case law concerning the right to a fair trial.
But there is more!
BACK TO THE CONSTITUTIONAL COUNCIL? (SURPRISE!)
We just asked for a priority preliminary ruling on the issue of
constitutionality (QPC) that will have to pass the French Council of
State's scrutiny and will, hopefully, be referred to the Constitutional
But why going back before the constitutional judges, when they have already
largely deliberated on the Surveillance Law , rejecting most criticisms
that we, as many others, submitted?
One key provision had, seemingly, been overlooked.
As for so many other discoveries, it was chance that brought our attention
to it: on 12 April, like many people, we learnt from the French newspaper
_Le Monde_ how the DGSE  had put politician Thierry Solère under
surveillance in 2012, probably by using article 20 of the 1991 law. We did
remember this article 20, which had been denounced as soon as in 2001 as
being a potential basis for a vast surveillance system. Nevertheless, maybe
unconsciously, we had assumed that its existence would end with the new
Surveillance Law, whose objective, according to the Government, was
precisely to put an end to unclear "a-legal" regimes, which this kind of
provision had let flourish.
Hunting for this article 20, we found it as such, unchanged for the last 25
years, with merely a new numbering in the Surveillance Law as article L.
811-5 of the Internal Security Code .
This article specifies that "measures taken by public authorities to
monitor and control wireless communications for the specific defense of
national interests are not subject to the provisions of this book".
For a start, the notion of "wireless communications" 5  might not be
clear for everybody, and it is useful to provide a few examples. It might
concern, for instance, all information sent:
* between a mobile phone and its relay antenna (GSM/3G/4G);
* between a WiFi hotspot and a computer, smartphone or tablet;
* by a laptop using a 3G or 4G dongle;
* between two Bluetooth devices (wireless microphones, etc);
* between a cordless phone and its station;
* between two ham radio practitioners or two walkie-talkies, etc.;
* by users of Satellite, WiMax, WiFi etc.;
* between an instant pay card and its station;
* by a GPS beacon;
* between an NFC chip (which you find in credit cards, or various other
cards) and the reader.
Therefore, all "public authorities" - all state services (ministers,
prefects, DGSE, DGSI, independent authorities, etc.) - may have recourse to
any technique allowing "monitor and control" of these wireless
transmissions, in the name of "the defence of national interests".
Finally, and most importantly, these techniques are "not subject to the
provisions" of the book VIII of the Internal Security Code which, being
derived from the Surveillance Law, supervises all surveillance activities
in France. That is to say, this wireless transmissions monitoring is a
loophole, not covered by any binding legal framework.
Thus, the lawmaker leaves the door open for all sorts of surveillance
measure by state services.
Should a person's phone calls be destroyed after a set time once
intercepted? Does an independent authority verify that the emails sent from
a smartphone have been intercepted for a legitimate reason? What legal
remedies are offered to citizens under surveillance? Nothing is specified
on these matters.
Thus, all wireless communications are _de facto_ excluded from the scope of
the - still insufficient - control procedures established by intelligence
techniques. In other words, while the Government claimed to supervise
intelligence techniques, it merely did so for a few wired communication
techniques. What is even more shocking is that during the legislative
debates on the Surveillance Law, our attention was particularly drawn to
the IMSI catchers. But these intelligence techniques are essentially not
covered by the Surveillance Law, since they apply exclusively to wireless
In the face of such a lack of safeguards, we can only expect the French
Constitutional Council to follow its own case law and to censure this
provision for "negative incompetence"6 , as it had done so with the
Surveillance Law by censoring the provisions pretending to regulate
APART FROM THIS LEGAL ACTION, WHOSE DELAYS ARE STRICTLY LIMITED, WE WILL
CERTAINLY HAVE TO BE PATIENT SINCE THE GOVERNMENT WILL MOST LIKELY RUN OUT
THE CLOCK AND TRY TO AVOID THAT ANY CASE BE BROUGHT BEFORE A EUROPEAN
JURISDICTION. THREE YEARS AFTER THE BEGINNING OF THE SNOWDEN REVELATIONS,
AND FACING THE INERTIA OF THE EUROPEAN PARLIAMENT, IT IS NOW THE
JUDGES' TURN TO HAVE THE FINAL SAY. LET US HOPE THEY WILL OVERCOME THE
TEMPTATION OF FOLLOWING THE REASON OF STATE.
* 1.  The QPC is a French Constitutional Law procedure allowing
persons involved in a pending case to ask the Constitutional Council to
assess the constitutionality of the laws relating to the case at hand.
* 2.  Source: Le Figaro, 23 June 2015 [FR] 
* 3.  The first French non-profit Internet access provider.
* 4.  National Oversight Commission for Intelligence-Gathering
* 5.  « transmissions empruntant la voie hertzienne » in French.
* 6.  The notion of "negative competence" is a French Constitutional
Law one, referring to cases where the legislator has overlooked his
competence derived from the principle of legality (art. 34 of the French
Constitution). The omission of this principle leaves the regulatory power
with the task of regulating cases which should have been regulated in the
ABOUT LA QUADRATURE DU NET
La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.
>In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International.
List of supporting organisations:
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