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.