News analysis

Government spying spooks French citizens

Tussle between spy agency chiefs and public, judiciary to continue

LONDON • Lawmakers in France are putting the finishing touches to new legislation governing the monitoring and interception of communications by the country's intelligence services.

But that's unlikely to put an end to the tussle between spying agency chiefs who want more flexible structures to detect and disrupt terrorist networks, and the French public and judiciary, who remain inherently suspicious of such pleas.

The National Assembly in Paris has already adopted in June legislation clarifying the powers which security services will have to intercept communications on French national territory, and how evidence gleaned from such data will be used to prosecute suspected terrorists. That was both controversial and technically tricky, given France's complicated legal structure in which, depending on circumstances, security services may have to report to both the president and the prime minister.

Still, a mere six months after the terrorist attacks against the Charlie Hebdo satirical magazine and with predictions by French Prime Minister Manuel Valls that perhaps up to 3,000 of his country's citizens may volunteer to fight for the Islamic State in Iraq and Syria terrorist organisation in the Middle East by the end of this year, few legislators opposed the new law.

Nevertheless, the legislation hit a snag in an unexpected area: over the powers which French spying agencies should have to intercept communications outside their country. Historically, that was hardly a sensitive topic: Lawmakers care a great deal about what spooks can do at home, but are often relaxed about spying on foreigners and foreign governments, both of which are considered fair game.

However, recent rows over the operation of the US National Security Agency in Europe have alerted parliaments to the fact that the external activities of their spooks do have serious domestic political consequences. And, as French legislators pointed out, in today's electronic communications age, the distinction between purely domestic and foreign intercepts is irrelevant.

The French controversy on external spying was also fuelled by revelations in Le Monde, one of France's top dailies, about the existence of the awkwardly named "National Pole of Encryption Analysis and Decryption", or PNCD as it is known by its French-language acronym, a coordinating centre which collects all the foreign electronic data intercepted by French agencies.

"There is no 'Big Brother' in the centre of our intelligence community," French Defence Minister Yves Le Drian told MPs, in an attempt to deny the importance of the Le Monde revelations. "The PNCD is merely a mechanism which existed for quite some time and which is necessary for standardising the surveillance of international communications."

Still, critics are wondering why, if the PNCD is just a bureaucratic structure, the government saw fit to deny its existence until this year.

And some lawmakers are also perturbed by the fact that although the PNCD operates under the Directorate-General for External Security, France's external spying agency, the data it holds is routinely available to the internal security services as well as to tax and Customs inspectors and the Paris police, theoretically making a mockery of the concept that the privacy of French citizens is protected, since it is difficult to separate the various kinds of stored information.

French ministers initially tried to convince parliamentarians that the specific procedures for handling intercepted communications will be spelt out in a future decree and should not be included in the law.

But France's Constitutional Council, the country's ultimate legal arbiter, ruled this unacceptable. The government was therefore forced to introduce new legislation.

Parliamentarians appear persuaded by their government's new promise that the use of intercepted communications will be regulated in a transparent manner, and that all the procedures will be reviewed by the existing National Commission for the Control of Security Intercepts, which is staffed by independent judges. The draft new legislation on external intercepts was, therefore, approved this week by the French parliamentary defence committee after a debate of a mere 20 minutes, and seems certain to be approved by the full parliamentary chamber on Oct 1.

However, the public row shows no signs of abating, with at least one French NGO defending online freedoms, La Quadrature du Net, vowing to mount a "vigorous legal challenge" against the law.

As in Britain, the French effort to enact new laws on the intelligence agencies was initially prompted by a genuine desire to anchor spying activities in a more predictable and stable national framework.

Yet, like the British, the French are discovering that the more they open up their intelligence activities to public scrutiny, the more unpredictable and controversial the legal framework becomes.

A version of this article appeared in the print edition of The Straits Times on September 19, 2015, with the headline 'Government spying spooks French citizens'. Print Edition | Subscribe