AEDH

The progress of the surveillance state and the Big Brother Award of the European governments

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On October 18th 2017, the National Assembly and the French Senate, with a strong majority, passed the Anti-Terror Law Bill. Such law marks the enshrinement of the emergency state in common law. Indeed, it allows assigning an individual to a perimeter equal to the municipality, to carry out searches, to close a place of worship and order identity checks near borders. Judicial authorizations are no longer necessary, except for searches. This law strongly reinforces the powers of the administrative authority, that is, the prefects and the minister of the interior[1].

More precisely, France has narrowly escaped the surveillance state. Approved by the National Assembly but rejected by the Senate, the obligation for a person subject to an individual surveillance measure to declare his subscription numbers and the technical identifiers of his electronic means of communication has been removed from the text. Such an obligation for people suspected of their behavior, relationships or activities on the networks to flirt with terrorism, to hand over their electronic identifiers, was considered by the Senate as “contrary to the fundamental rights whose respect is guaranteed by the Constitutional Council”[2]. Such a provision would endorse the possibility of monitoring an individual, without the consent of the judiciary, and punishing him on the basis of mere presumptions, presumed dangerousness, and thus undermining the fundamental principle of the presumption of innocence[3]. In addition, there were several problems with this provision, including: the lack of supervision of the data collected on the platform provided by the suspect, the spectrum of login credentials was poorly defined, but also an excessive sanction was imposed in case of forgotten identifier (a forgotten identifier generated three years in prison and 45,000 euros fine). Another change has been made to the original text regarding the Passenger Name Record (PNR). Indeed, the “principle of indirect and non-direct access by the intelligence services, police and gendarmerie” to the maritime and air PNR file was retained. Thus, a major breach of personal data protection was avoided partly thanks to the withdrawal of the obligation to provide its personal identifiers[4].

This tendency to move from a state of law to a state of surveillance reflects the general trend of European governments. Indeed, those latter were awarded, on October 13th, the Big Brother Award[5]. This price, with a negative connotation, is a reference to G.Orwell’s novel ‘1984’, attributed by the Flemish League of Human Rights to those deemed as the greatest violators of private life. In particular, the price targeted state hacking practice. In recent years, state hacking has become a powerful tool of the secret services of European countries, which has expanded the possibilities of espionage of citizens and reinforced the principle of “insecurity by design”. Hacking is the manipulation of software, data, computer systems, networks or other electronic devices without the permission of the responsible person or organization, thereby undermining the fundamental freedom of data protection.

Despite the development of digital technology, and the complexity, especially for governments trying to face terrorism, of finding the right balance between security and privacy, data protection remains a fundamental right. However, according to the Eurobarometer[6] of data protection, a survey conducted in the EU countries on populations over the age of 15, only a minority of citizens feel they have complete control over the information they provide online. 31% think they have no control over their data and 67% think they have only partial control. Thus, the majority of respondents are concerned about the protection of their data.

AEDH welcomes the position taken by the French Senate to reject the obligation for suspects to provide their identifiers, a fundamental breach of the principle of data protection and presumption of innocence. Such a decision demonstrates that data protection, even considering the challenges European governments are currently facing, is still a fundamental right not to lose sight of.

 


[1] Le Monde, « Le projet de loi antiterroriste définitivement adopté », 18th October 2017 – http://www.lemonde.fr/police-justice/article/2017/10/18/le-projet-de-loi-antiterroriste-definitivement-adopte_5202811_1653578.html

[2] Next INpact, « L’obligation de déclarer ses identifiants supprimée du projet de loi antiterroriste », le 10th October 2017 –

https://www.nextinpact.com/news/105378-lobligation-declarer-ses-identifiants-supprimee-projet-loi-anti-terroriste.htm

[3] Libération, « Contre la loi de sécurité intérieure », le 28th September 2017 –           http://www.liberation.fr/debats/2017/09/28/contre-la-loi-de-securite-interieure_1599615

[4] Next INpact, « L’obligation de déclarer ses identifiants supprimée du projet de loi antiterroriste », le 10th October 2017 –

https://www.nextinpact.com/news/105378-lobligation-declarer-ses-identifiants-supprimee-projet-loi-anti-terroriste.htm

[5] EDRi, “Europe’s governments win the Big brother Awards 2017 for opening the Pandora’s box of surveillance”, le 13th October 2017 –   
https://edri.org/state-hacking-big-brother-awards-belgium-2017/

[6] European Commission, “Data protection Eurobarometer”, June 2015 – http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_eurobarometer_240615_en.pdf

 

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