In France, Intelligence Agencies Remain Without Sufficient Checks & Balances

Article first published in French on [The Conversation FR]((https://theconversation.com/en-france-des-services-de-renseignement-sans-vrais-contre-pouvoirs-163040).

Eight years after the revelations by whistleblower Edward Snowden, the National Assembly has just adopted, amid a certain degree of indifference, the bill on the prevention of terrorist acts and intelligence. The text is now being examined by the Senate.

This is the first major revision of the intelligence law adopted in 2015. At the time, the Manuel Valls government defended the text by explaining that France was “one of the last Western democracies without a coherent and comprehensive legal framework for intelligence activities.”

The bill’s rapporteur in the National Assembly, Jean-Jacques Urvoas, repeatedly emphasized how much it constituted “progress for the rule of law.” The matter was settled: the secret services saw their missions and methods enshrined in law; intelligence was, as far as possible, no longer considered exceptional, but rather part of normal public policy.

This way of presenting things had the merit of acknowledging France’s historical shortcomings in terms of intelligence service oversight. However, it tended to overlook an important corollary: the fact that the law that was passed legalized, after the fact, surveillance measures that had been used illegally for years, which should have resulted in criminal prosecution of the political and administrative officials who authorized these programs.

The bill currently being debated in the Senate is certainly much less ambitious than its 2015 predecessor. However, it follows the same logic, well analyzed by sociologists Laurent Bonelli, Hervé Rayner, and Bernard Voutat, which consists of using the law to legitimize the actions of the services and preserve their room for maneuver.

This new law seeks to provide legal certainty for ever-expanding surveillance capabilities—such as “black boxes” that scan Internet traffic to detect “suspicious” URLs “ (Article 13), data sharing between French services (Article 7), or the obligation for operators and server managers to collaborate with the authorities to ”hack" encrypted messaging services (Article 10), etc. – while shielding the intelligence services from any real countervailing power.

Strengthening intelligence oversight should, however, be a priority given its growing role within the state. Since 2015, intelligence services have seen their staff increase by 30%, particularly to develop their technological capabilities. In this context, the use of various surveillance techniques is also growing rapidly and is affecting areas that are increasingly sensitive for civil liberties. For example, activity devoted to monitoring social movements—made a priority since 2019 in the wake of the “yellow vest” movement—has more than doubled in three years, rising from 6% of total surveillance measures in 2017 to more than 14% in 2020.

Despite this increase, almost all proposals to strengthen control mechanisms have come to nothing, whether they originate from the Parliamentary Intelligence Delegation (the DPR, composed of deputies and senators), the National Commission for Information Technology and Civil Liberties (CNIL, which is supposed to control so-called “sovereign” files), or the National Commission for the Control of Intelligence Techniques (CNCTR, which issues opinions on surveillance measures requested by the services).

Uncontrolled data exchanges

For several years, the CNCTR has been asking, for example, to be able to control data sharing between French and foreign intelligence services. In France, the issue is all the more pressing given that the flow of data exchanged between the General Directorate for External Security (DGSE) and the National Security Agency (NSA) has increased rapidly following the conclusion of the SPINS agreements, signed at the end of 2015 between France and the United States to strengthen cooperation between the two countries in the field of intelligence.

However, the 2015 law proposed by the Valls government explicitly excluded any control by the CNCTR over these international collaborations, which are fueled by networks of intelligence professionals enjoying a high degree of autonomy, and which researcher Didier Bigo has proposed to understand through the concept of a “transnational guild.” 11.

In its annual report published in 2019, the CNCTR acknowledged that this veritable black hole in intelligence oversight posed a major risk, as it could allow French services to receive data from their counterparts that they would not have been able to obtain legally through the procedures defined in French law. In its characteristic measured language, the commission considered that “consideration should be given to the legal framework for data exchanges between French intelligence services and their foreign partners.”

To support its request, the CNCTR referred to the case law of the European Court of Human Rights (ECHR). In its judgment in Big Brother Watch v. United Kingdom on May 25, 2021, the ECHR reiterated that such exchanges must be governed by national law and subject to the control of an independent authority (§ 362). . However, to date, France is the last Member State of the European Union that does not have a legal framework to regulate these international exchanges. Neither the government nor members of parliament have apparently seen fit to remedy this situation.

Ignored case law

Another essential principle established by European case law is the right to information of persons who have been subject to surveillance measures, once such information is no longer likely to hinder the investigation conducted against them by the authorities.

In a report published in January 2018, the CNCTR reviewed the relevant case law and cited several examples of foreign legislation—notably German law—guaranteeing a procedure for notifying individuals under surveillance and providing for a number of strictly limited exceptions. It was forced to conclude that, under French law, “persons under surveillance cannot be informed of the intelligence techniques used against them.” The bill completely sidesteps this issue.

The government has also chosen to ignore another requirement, reiterated by the Council of State in its [ruling of April 21, 2021] on the generalized retention of connection data. In this decision, which largely upholding the government’s case, the Council of State relied on a ruling by the Court of Justice of the European Union of October 6, 2020, to require that the opinions issued by the CNCTR on surveillance measures be “compliant” (i.e., binding on the government) and no longer merely advisory. The CNIL in turn reiterated this point in early May in its opinion on the draft law. The government once again rejected the proposal.

As for the joint desire of the DPR and the CNCTR to guarantee the latter a right of access to intelligence files, this has met with fierce opposition from the services. As the DPR parliamentarians have pointed out, this is a crucial step in the oversight process, as it is the only way for the CNCTR to “ensure that no data has been collected, transcribed, or extracted in violation of the legal framework, or even without authorization from the Prime Minister.”

Furthermore, it would be difficult to find provisions in the French legal framework governing other activities that are typical of intelligence work and extremely sensitive from the point of view of civil liberties. This is the case for the surveillance of letters and postal parcels, or the infiltration of certain groups by intelligence agents. In the United Kingdom, the Investigatory Powers Act 23 of 2016 covers both of these areas.

The French law also makes no mention of so-called “open source” surveillance, particularly on social networks such as Facebook or Twitter—an activity about which little has leaked to the press but which is known to have grown in importance over the last ten years.

Impossible transparency?

Finally, the text currently being debated in Parliament does not include any progress in terms of transparency of intelligence activities. However, the extent of secrecy seriously undermines the ability of journalists, NGOs, researchers, and other institutional actors, such as judges, to play their role as counterbalances to power.

Apart from the few pieces of information that have filtered through thanks to the small circle of specialized journalists with access to sources within the services, and apart from the rare references made by intelligence officials during parliamentary hearings or by the CNCTR, no official information is provided on the exact nature of the technologies used by the services. Their involvement in the intelligence production process, the nature of public contracts and the identity of private subcontractors, and even the legal interpretations used within the services, also remain largely opaque.

Here again, a comparison with the main European intelligence powers reveals France’s lag. To be convinced of this, one need only consult the report published in August 2016 by David Anderson on the sidelines of the parliamentary debate on the Investigatory Powers Act in Great Britain. This lawyer, who is responsible for the independent oversight of anti-terrorism legislation, reported on the technological capabilities for the “massive” collection and use of data (“bulk powers”). He also gave several examples of cases in which these technologies were used and assessed their operational value on the basis of internal documents and interviews with certain senior officials.

In France, such a degree of transparency seems unimaginable at present. Although the CNCTR has made some progress in improving the accuracy of the information provided in its reports, it essentially confines itself to describing the state of the law and its evolution, or to disseminating general statistics on the types of measures authorized and their purposes. We are still a long way from the level of detail that fuels public debate and informs the work of parliamentarians, journalists, and NGOs in countries such as the United Kingdom and Germany.

If the Senate fails to amend the bill on these various points, this reform will be yet another missed opportunity to bring French intelligence into line with international standards and best practices observed abroad.