Earlier this week the French Parliament formally adopted new anti-terrorism legislation that has been rushed through by the government. The measures approved by the Senate on Tuesday November 4th include provisions aimed at curbing the use of the internet by terrorists - both by groups and so-called “lone wolves”.
The measures drawn up by interior minister Bernard Cazeneuve have met a chorus of disapproval from a range of different bodies in France, including civil liberties groups, journalist organisations, judges and the state advisory body on digital affairs, the Conseil National du Numérique or French Digital Council. This independent body claims that the measure allowing the authorities to block sites that glorify or condone terrorism is “technically inefficient”, and “unsuited to the challenges of countering terrorist recruitment”, and also fails to offer “sufficient guarantees in terms of freedoms”.
The internet freedom campaign group Quadrature du net has meanwhile attacked the law as “harmful ... dangerous ... and intrusive”. The group's co-founder Philippe Aigrain said: “Democratic states harming fundamental rights by adopting ineffective measures in the name of fighting the glorification of terrorism is exactly what the terror groups are looking for.”
The leading judge's union, the Syndicat de la magistrature, has also issued a statement condemning the legislation, warning that there was once again a risk of emergency legislation being made permanent. “It is the peculiarity of anti-terrorism policies, in France and elsewhere, that they are introduced in the context of an emergency and become permanent exceptions [to the law],” said the judges. “Behind the appearance of a respect for legality and the adoption of a range of measures often validated by the Constitutional Council, there has in reality been an endless erosion over the last 25 years of the guarantees of criminal law procedures through the establishment both in our law and in police and judicial practice of 'exceptions'.”
Yet not only did most MPs and senators not heed these warnings, in some cases they actually toughened some of the measures proposed by the interior minister. The legislation passed through Parliament against a backdrop of media alarm about so-called “lone wolf” terrorists operating in France and elsewhere, and demands to tackle the problem of French jihadists heading off to fight for Islamic State (IS) in Syria and Iraq. As a result parliamentarians removed some of the safeguards in the draft legislation.
The United States also played a background role in ratcheting up the pressure on France to take action. For example, on Monday October 27th, the American coordinator of the international coalition against IS, retired general John Allen, met other coalition representatives in Kuwait to “contest Da’esh’s [editor's note, Islamic State] presence online and deny the legitimacy of its message”. American officials have talked about the need for an “information coalition” against ISIS.
The new French legislation both creates new offences and toughens existing ones. In article 4 the current offence of “condoning terrorism” is moved out of the aegis of the 1881 law on press freedom and is for the first time added to the French criminal law code (article 421-2-5), carrying a penalty of five years imprisonment and a 75,000 euro fine. This measure deliberately targets the internet; because condoning terrorism on a “public” website, in other words one that is accessible to everyone, is seen as an aggravating factor, and attracts a stiffer penalty of seven years and a 100,000 euro fine.
Not all Parliamentarians approved of this provision. Green MP Isabelle Attard feared it would create a “new crime of opinion, a dangerous tool in the hands of a democratic government and a nuclear weapon in the hands of an autocratic one”. And Lionel Tardy MP of the right-wing opposition party, the UMP, noted: “Ninety-five percent of what happens on the internet won't be affected as it doesn't happen on French territory.”
Article 5 of the law deals with the question of the so-called “lone wolf” terrorist by creating a new offence (which will be article 421-2-6 in the criminal law code) of an “individual terrorist enterprise”. One aim of this provision is to allow the arrest of a suspect from the “preparation” stage of the attack. To counter claims that the “preparation” of a terrorist act could be seen as a vague concept, the law provides some conditions that must be met before the offence is deemed to have taken place.
The first of these conditions is the “fact of possessing, researching, procuring or making objects or substances of a nature to create a danger for others”. Secondly, the offence requires the fact of “gathering information about a location, about one or more persons” or receiving “training or teaching” about the “handling of arms”, the “making or the use of explosives” or the “piloting of aircraft”, or, alternatively, “consulting habitually one or several public, online communications platforms that directly incite the committing of terrorist acts or condone them”.
However, in a joint MP-Senate committee examining the text, parliamentarians added a new element that could also turn an internet user into a potential terrorist, namely “the fact of producing, transporting, distributing by whatever means and by whatever medium” a message inciting terrorism and which might be “susceptible of being seen or received by a minor”. This measure directly targets social networks and the practice of re-tweeting on Twitter or sharing items on Facebook.
Safeguards removed
In practical terms article 5 means that the fact of having at home a product that could be used to make an explosive, of consulting a website or even re-tweeting a message considered to be condoning terrorism could put someone on the wrong side of the law. Aware of the danger that this article posed to freedom of information, MPs added in a number of exceptions as safeguards. These safeguards stipulated that article 5 would not apply to people whose viewing of such sites arose from “the normal exercise of a profession whose purpose is to inform the public, which comes inside the framework of academic research or is carried out for the purpose of providing evidence in court. In this way this new crime cannot provide an obstacle to the work of journalists or academic researchers”.
However, even this safeguard was removed when senators later examined the bill. This means that it will now be for a judge to determine if the journalist or researcher concerned is a terrorist or if their consultation of a certain site sprang from their professional activities.
Another important measure in the new law is contained in article 9, which allows the authorities to block websites that condone terrorism, following the existing model relating to the blocking of paedophile sites. The French cyber crime unit, the Office central pour la lutte contre la criminalité informatique (OCLCTIC), will now have the power to demand that website publishers and host providers withdraw all content that is considered to be condoning terrorism. If there is no response within 24 hours, the request will be sent to internet service providers (ISPs), who ultimately will be ordered to block the sites.
The cyber crime unit will have the assistance of a “qualified person”, chosen by the body in charge of freedom of information the Commission nationale de l'informatique et des libertés (CNIL). Their role will be to “verify that the content that the administrative authority wants to withdraw or that the sites that it is ordering to be blocked are genuinely contrary to the measures in the criminal law punishing incitement to terrorism, condoning of terrorism or the distribution of child pornography”. The person nominated by CNIL will only have the power to make recommendations, but will be able to “refer the matter to the administrative courts” if the “administrative authority does not follow” his or her advice. Critics of the law say that it should be a judge who decides on whether the blocking of a site is justified.
This measure was made tougher at the last minute by Bernard Cazeneuve through an amendment tabled in the Senate and which also authorises the OCLCTIC to demand that search engine providers remove sites that condone terrorism from their search results.
The legislation contains other important measures, such as the possibility under article 10 for police to search data stored outside a suspect's home, in other words in the so-called Cloud, while article 11 allows for “any qualified person” to decipher any data found. Article 12 adds the notion of “organised gang” as an aggravating factor for attacks on data systems.
As with the bill's initial passage through the Senate and the National Assembly, Tuesday's final vote was carried out by a show of hands and the legislation was approved by nearly all senators from the Socialist Party, the right-wing UMP – who now control the Senate – centrists and members of the Parti Radical de Gauche. Only the communists and greens voted against, with the far-right Front National abstaining. The nature of this broad national consensus was summed up during the bill's passage by socialist Jean-Pierre Sueur, vice-president of the Senate's legal committee, who said: “The international context justifies this bill, alas.”
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The French version of this article can be found here.
English version by Michael Streeter