The Paris attacks of November 13, 2015, demonstrate, if such a demonstration is still necessary, that the aim of new French intelligence laws is not to anticipate or prevent terrorist attacks, but simply to eliminate the private lives of French citizens. President Hollande’s statements that delays in implementing the law were behind the “failure” of the intelligence services are a denial of the fact that this legislation only confirms existing practices. The Law on Intelligence, just like the law on military planning, is mainly an attack on private freedoms. The state of emergency will likewise eliminate public freedoms.1
Following the November 13 massacres, the government is already considering changes to the Law on Intelligence, with the aim of “eas[ing] the procedures the intelligence services must follow when they would like to use means of surveillance.”2 Yet this law does not establish any controls over the activities of the secret services. It does set up a National Control Commission, but this body has no effective possibility of carrying out its mission, and can only offer recommendations. It is not a question, then, of eliminating a control that does not exist, but of signaling that the very idea of monitoring the executive branch should be abandoned—a clear signal that no limitation can or should be placed on its actions.
The Law on Intelligence
Pointing to recent changes in the relation between state and citizen as evidence for the existence of a “surveillance society” prevents us from understanding the true extent of the transformation. The new “anti-terrorist” legislation is not primarily aimed at controlling individuals, but at getting the latter to give up defending their freedom. These laws attack the very desire to resist. In Europe, France is currently at the forefront of this change. On July 23, 2015, the Constitutional Council ratified most of the Intelligence Law by a large majority.3 It thereby legitimized a law considered to be particularly detrimental to fundamental liberties, so much so that a group of 106 deputies, from both the majority and the opposition, lodged an appeal after the final adoption of the law on June 24, 2015. The President of the Republic and the President of the Senate had also both appealed to the Constitutional Council to ratify the law.
The debate in both chambers of Parliament was rather perfunctory, since the Socialist Party and the right were in agreement on the essential points. The law that was finally adopted differed little from the preliminary draft submitted for discussion to the plenary session. The use of fast-track procedures, which meant there was only one reading by the Assembly, prevented any substantive discussion. The justification put forward—that there was an emergency—is not credible. The legislation adds existing, but illegal practices to the law. What is more, these practices have already demonstrated their complete ineffectiveness in recent terrorist attacks. This law is completely at odds with the guidelines established by the European Court of Human Rights: that any interference in the private lives of individuals that is codified into law should only be allowed on the basis of a “precisely written law,” i.e., on the basis of clear and detailed rules.4
Beyond the Patriot Act
The new Intelligence Law is often called the French Patriot Act. Like the legislation passed by the U.S. government after the attacks of September 11, 2001, the French law establishes that the collection and surveillance of communications can be carried out without a warrant or court order. However, a distinction immediately stands out. The Patriot Act is considered to be provisional and is based on a fiction: that there is a state of emergency caused by the “war against terrorism.” The French law, in contrast, is presented as permanent and not tied to any exceptional circumstances. Suppression of the right to private life immediately becomes the basic principle of the relation between the rulers and the ruled. The prerogatives given to intelligence agencies are essentially irreversible, without any stated possibility for a return to the rule of law.
The fiction of the state of emergency allows the United States to present itself as a democratic state taking provisional measures to suspend liberties, where the legislative branch still has a role to play. In France and in most of the member countries of the European Union, this concern carries little weight. Not only does the executive branch tend to erase even the appearance of a legislative function; it also makes little effort to appear as a center of autonomous decision-making in relation to the European Union and NATO. Only the United States stands out as a state possessing all the sovereign prerogatives, particularly monetary and military. The member countries of the European Union are effectively “failed states,” in the same way that Bush administration legal advisor Alberto Gonzales defined countries such as Afghanistan.5
This formal difference does not, however, mean that the United States actually does more to protect individual liberties; it only points to a specific characteristic of the imperial structure. In post-Maidan Ukraine, the political leaders are either proconsuls named by the United States or U.S. citizens naturalized as Ukrainians in order to carry out governmental responsibilities. This is only the most advanced example of a tendency shared by the member countries of the European Union: increasingly direct control of satellite territories by the United States. Even merely formal legislative functions no longer have any place in the political structure, and the law in these countries is obliged to enshrine the abolition of public and private freedoms.
In the Patriot Act of 2001, some legal measures were designed to last for an indeterminate period of time, while others were presented as provisional. The latter could be extended every four years. With the law’s reauthorization in 2006, nearly all these measures became permanent, and only articles 206 and 215 were extended, again for a period of four years. Article 215 allows the FBI, pursuant to secret authorization by a court, to access medical data, bank accounts, library borrowing data, or any other “tangible things.”6 Article 206 authorizes the use of “nomad connections,” in which FBI agents are not obligated to identify their suspects to gain permission to install communications surveillance devices. Since the government does not have to name the person monitored, it can legally monitor the telephone of any individual. Both houses of Congress have since continued to extend these articles.
On June 2, 2015, after some debate, the Senate adopted the USA Freedom Act, already passed by the House. The law was sold as a limit on the powers of the National Security Agency, compensation for extending the “temporary” provisions of the Patriot Act. However, any restriction on the privileges of the FBI and the NSA is purely formal. These agencies still have the possibility of real-time collection of content and connection data, but “only” when it fulfills “specific criteria.”7 These data can include the person’s identity, account numbers, address, or information from personal electronic devices. Technically, the law limits the scope of the search; for example, collection cannot cover an entire region, or monitor all the communications passing through an access provider. However, the administrative services need only demonstrate a “reasonable suspicion” of a target’s link to terrorism, and merely evoking an “emergency situation” will allow them to evade even these very broad criteria. In fact, the massive collection of data on U.S. citizens can and will continue.8 Recall that President Obama supported the USA Freedom Act, as did the NSA, which believed that the law preserved the essential parts of its surveillance capacities.
A Transformation of the Intelligence Services
Similarly, in France, the intelligence services may now install a “black box” on access providers, allowing them to monitor Internet traffic and capture metadata, including the origin and destination of a message, IP address of a visited site, and duration of a conversation or connection. That the anonymity of this information may, if necessary, be removed shows that such metadata does indeed ultimately identify the user.9 The law also permits the intelligence services to use techniques previously reserved only for legal investigations, such as microphones, cameras, geolocation markers, and spy software, and authorizes the installation of false relay antennas that allow the capture within a specific perimeter of the connection data and conversations of all people communicating by telephone, computer, or cell phone.
It is therefore no longer a question of accessing information on a person under investigation, but of making possible the systematic, widespread, and indiscriminate collection of a vast volume of data on persons who might well be totally extraneous to the mission at hand. In effect, the nature of intelligence work itself has changed: it no longer concerns the agents of a foreign power, but mainly the citizens of France. The decision-making, control, and implementation of these secret measures are confined to executive authorities, doing away with any judicial safeguard. The law provides executive authorities with a permanent, clandestine, and almost unlimited system for monitoring citizens.
Missions are no longer focused on the “defense of national territory” or “prevention of any form of foreign interference.” Besides, it has been a long time since national independence has been of any real concern to French and, more generally, European intelligence services. Several secret U.S. documents show that France has participated in NSA “trawling”—spying on its own citizens as well as those of other European countries on behalf of the U.S. agency. A recently declassified top secret article from 1989, which appeared in the NSA’s internal journal Cryptologic Quarterly, reveals the increased cooperation of the United States with “Third Party Nations,” which has included France since the 1980s.10 What is true of France is also true of other member nations of the European Union.
The reorganization of the intelligence services around the surveillance of citizens is part of an imperial structure in which the government’s enemies are not only a few nations that evade its control, but above all its own population. U.S. law already allows for any American or foreign citizen, even of a country not at war with the United States, to be named an “enemy combatant” or “unprotected belligerent.” Extradition agreements signed between the European Union and the United States have extended this principle to European nations. The growing militarization of U.S. police forces is also a symptom of the transformation in relations between rulers and ruled, of the disappearing distinction between a nation’s interior and exterior.
The new French Law on Intelligence is part of this tendency. Intelligence missions are not limited to the “war against terrorism,” but concern all crimes and offenses committed by “organized groups,” a term with no clear definition. It also allows the intelligence services to take action against “collective violence likely to harm national security,” i.e., against social movements and protests. The inclusion in the law of the phrase “prevention of attacks on the republican form of institutions” is breathtaking. Since the danger of a royalist plot no longer menaces the Republic, who could possibly be implicated in this supposed threat if not the supporters of political change?
The black boxes, aimed at recording our behavior, are justified by the belief that “groups or individuals involved in terrorist operations have characteristic digital behaviors.” The mathematical algorithms used to track these attitudes are similar to commercial data mining, which uses models constructed by tracking a large number of repetitive actions. Terrorist attacks, conversely, do not occur with comparable frequency and respect no predefined protocol. Even the NSA, after claiming to have prevented fifty-five attacks in 2013, had to revise its claims before a Senate committee and admitted to having thwarted only one act of terrorism—and this from an agency that captures all communications from around the world.11 The agency’s admission confirms the results of an investigation carried out by journalists and computer researchers for the French magazine Rue89: “Regardless of the algorithm chosen, the measure will be costly, intrusive, and ineffective.”12 The purpose of the law, then, is not simply to ensure the surveillance of the French population, but to gain their consent for the intrusion into their private lives. For although privacy is a fundamental right established at the Continental level by Article 8 of the European Convention on Human Rights, French Interior Minister Bernard Cazeneuve declared last year that “the right to a private life is not a fundamental liberty.”13
No Control, No Recourse
The law sets up a consultative authority for control: the National Commission for Control of Intelligence Techniques (CNCTR), composed of two members of parliament, two senators, two members of the Council of State, two magistrates from the Court of Cassation, and “one qualified person.” Its function is to verify that the legal criteria authorizing the investigatory powers granted to the intelligence agencies are respected. However, its members have very limited time and lack the necessary technical training to carry out such verification. As the National Consultative Commission on Human Rights (CNCDH) points out, it is difficult to see how the CNCTR “will be able to verify if the algorithmic method is used in conformity with a mission,” and there is a “strong risk” that the new commission’s control over the process “will not be effective.”14
The CNCTR operates according to an inverted logic: to oppose the implementation of a procedure, an absolute majority of commission members must agree. But even then its decision is only advisory, and executive authorities remain free to implement the measure. It is only a posteriori, after the measure is first approved by the commission, that any judicial appeal can be made, and then exclusively before the Council of State. This is unlikely to happen, since the actions of the intelligence services are by nature secret.
Conversely, for a particular technique to receive authorization, the recommendation of only one member of the commission is required, and “in case of emergency,” no recommendation is necessary. If no response is received within twenty-four hours from the president or from a CNCTR member—whom the president himself appointed—the recommendation is deemed to have been given. This time limit is extended to just three working days if the matter was brought before the commission.22 Furthermore, the system seems completely closed: to bring illegal measures into the open has become a crime. According to the General Secretary of the Magistrates’ Union, Laurence Blisson, “if you reveal illegal surveillance, it would be considered a criminal offense. There is a risk of total impunity for intelligence agents.”16 In fact, Article 7 of the draft law, which became Article 13 in the final version, makes the revelation of surveillance measures, even illegal ones, a criminal act.17
The law does not define the limits of action for an all-powerful administrative police, and does not determine the moment where it must give way to a judicial inquiry that would protect the rights of the observed persons. Moreover, an appeal lodged by a private individual must be justified by a “direct and personal interest.” Already the secret character of the surveillance technique eliminates any effective possibility of judicial action on the part of the person concerned. But even if exceptional circumstances would permit a citizen to be informed of the capture of their data, or the fact that they are subject to a particularly intrusive technique, the motivation of a “direct and personal interest” is difficult to assert. The administration could always claim that the individual in question is not personally targeted by the technique, but simply accidentally affected because he or she happens to be in the environment of the surveilled person.
But even if, despite everything, the individual’s appeal ends up before the Council of State, the administrative authority has no obligation to reach a decision, but only “the possibility of taking the appeal into account.” The destruction of the collected data, transcriptions, and analyses completed by the intelligence services is no longer obligatory, but is left to their discretion. Thus, the new article L. 773-7 of the Administrative Justice Code reads, “When the court notes that an intelligence technique is or was implemented or used illegally, it can quash the authorization and order the destruction of the illegally collected intelligence, if it has taken place.”18
A Panoptic Society
If, contrary to government claims, the aim is not to flush out “terrorist intentions,” then what is the purpose of these laws authorizing such massive collection of personal data? The need to obtain the consent of the population explains why this suppression is incorporated into the law, instead of proceeding simply from a suspension of the Constitution, as, for example, in Nazi Germany. The minister poses as a defender, not of a state of exception, but of a permanent legal order, a society in which each person is placed under the gaze of the government and compelled to reveal their private life.
This project is not new; it has existed since the beginning of capitalism. Jeremy Bentham had already theorized it at the end of the eighteenth century in England. Wishing to create a model prison, he developed his famous model of prison architecture, the Panopticon, which would allow a guard in a central tower to observe all the prisoners, locked in individual cells circling the tower, without ever being seen by those inside. Each cell was visible from a central point. The inspector, himself invisible, existed as a spirit.19
With the installation of black boxes, the principle of seeing without being seen now pervades the Internet. Bentham showed that the actual presence of the eyes of the other is not necessary to the omnipresence of an inner gaze. As Jacques Lacan wrote, “it is sufficient that something signifies…that the other could be there.”20 The prisoner, like the Internet surfer, must be completely subjected to power’s gaze, and must internalize it. Individuals are reduced to observing themselves being observed, to imagining the approval or disapproval of the administration. The subject cannot escape from this watchful and omnipresent gaze.
The body no longer speaks, it no longer stands up for itself. Having become transparent, it is no more than an empty form into which the other, the public authorities, can insert its desires. The subject is thus abolished and becomes confused with the object-gaze, with the desire of the other. It becomes the object of the all-powerful state. Bentham’s prison and the installation of black boxes are not products of a surveillance society, as Foucault theorized it, but of a panoptic society in which the objective is no longer to control the body, but to imprison the individual in the gaze of power. The individual becomes identified with the injunction of the superego. Thus, for the individual, it is not a question of submitting to some order, but of merging with and “freely” offering itself to that order.
This process is carried out through a disintegration of all social relations. It corresponds to a society of monads, in which the individual no longer has an other beyond the state power that maintains relations between the monads. It corresponds to a pure capitalism, just as Bentham already imagined. The antiterrorist laws and measures suppress the personal and thus any possibility of a distinction between the individual and the state; the monad becomes united with the latter and is no more than the product of the state’s intentionality, its judgment. The Law on Intelligence does not aim at “fighting against terrorism,” opposing an “internal enemy,” or even of exercising “surveillance” over the French population, but of signifying to the citizen that he or she no longer has an independent existence, that he or she has no other place than that determined by the word of the authorities. Henceforth, the citizen is notified that he or she has no choice but to be a good child of the maternal state or be designated a terrorist.
An Algorithmic Power
Not only are the law’s terms and limits extremely vague, allowing much latitude to administrative interpretation, but its methods claim to be free of all subjectivity. The automaticity of the algorithm makes it self-learning—that is, it self-generates the criteria used to designate someone as a terrorist. The unpredictability of the law’s effects is one of the objectives of the legislation. Individuals are left perpetually uncertain about the activities of the intelligence police, constantly wondering if they are being observed and what behaviors they should preventively adopt—for example, what websites they can safely visit. It is not a project of identifying particular behaviors that reveal a particular intention, but of imprisoning all citizens in the gaze of the authorities.
The black box, legalized by the Law on Intelligence, is emblematic of French citizens’ loss of control over their lives. As Claire Richard summarizes it, we are in “a society of asymmetrical transparency, in which the majority of people are surveilled at work or by the government, while the secret is the privilege of the most powerful.”21 Today, power is expressed in an increasingly automatic, algorithmic way. Thus, the use of black boxes is based on a belief that one can gain access to the real through the mediation of language and the interpretation of reality. It is a question of detecting possible terrorists even before any preparation for an action has begun. In the words of the media scholar Antoinette Rouvroy, “the real…is going to speak about itself: the terrorists are going to betray themselves through their own data, without having to really express their motives, the causes of their actions.”22 Terrorists exist because they are designated as such; their nature is revealed by the algorithmic treatment of data. This automatic and secret technique, which itself produces its own principles of evaluation, means that the authorities’ act of naming ostensibly escapes from all arbitrariness and any error.
The use of metadata makes it possible to exhaust all possibilities and eliminate any uncertainty. The automaticity of the procedure places us outside of language. It strives to reveal the real directly, by eliminating human subjectivity and the question of selecting or sorting information. The objectivity of the machine, of the algorithm’s work, allows the prediction of events; it anticipates the preparation of attacks, even when surveilled individuals are not yet themselves aware of their path of “radicalization.” This belief in control over what could be means that mere possibility becomes immediately real. In the end, virtuality, the word of the authorities, and the reality of terrorism become conflated.
Postscript, December 2015
The Law on Intelligence is the latest in a series of antiterrorist laws that have effectively ended private freedoms in France. As for public freedoms, the most virulent attack comes from the law of November 20, 2015.23 It extends the state of emergency, initially approved for twelve days after the November 13 Paris attacks, by three months. Prime Minister Manuel Valls denied that the law is a threat to freedom, stating on French public radio that “the state of emergency is the rule of law.”24 How ironic it is to invoke the rule of law to justify the proclamation of a months-long state of emergency, with no other aim than to override the separation of powers, liquidate judicial authority, and concentrate all prerogatives in the hands of the executive branch and its police. Since the beginning of the state of emergency, most of the administrative searches conducted have been in connection with maintaining order (for example, searches directed against environmental activists) or with common law offenses, without any link to the anti-terrorist fight. After the first month of the state of emergency, there were 2,700 administrative searches, 360 house arrests, and 287 persons in custody.25 The law is completely at odds with what the European Court of Human Rights advocates: any intrusion into liberties should only be codified on the basis of a “precisely written law,” that is, according to clear and detailed rules. The law on the state of emergency is the opposite, its articles so vague as to allow an almost unlimited margin of interpretation.
From House Arrest to Detention Camp
The conditions of house arrest, decided without the intervention of a judge, are harsh. The 1955 French law on house arrest applied to any person “whose activity has proven dangerous.” From now on, the newly amended law applies to anyone “with regard to whom there are serious reasons to think that his behavior is a threat.”26 This much wider and vaguer formulation leaves the definition of such “serious reasons” unspecified. By moving from “activity” to the realm of “behavior” and “presumption,” the new law abandons the materiality of facts and approaches the idea of a crime of intention.
House arrest can be enforced in a place that is not necessarily the prisoner’s home, to which a suspect can be forcibly taken. The law thereby opens the door to the establishment of camps. Moreover, this is no mere possibility, but a government plan. The government has forwarded a request to the Council of State for an opinion concerning the “constitutionality and compatibility with international commitments” of administrative internment, for preventive purposes, of persons categorized as “S” (for “offense against national security”). In this category are around 10,000 individuals who have never been convicted or accused of any crime. The camp could also take the form of a “deradicalization center,” the first of which will open in early 2016. It would initially accommodate those who are willing to “reform and be put on probation in order to assess their willingness to rejoin society,” followed by youth “singled out for their radicalization.”27
Night searches can also take place without judicial authorization, if there are “serious reasons to think that the place is frequented by a person whose behavior is a threat.”28 Such searches call into question the inviolability of a person’s home and can occur for vague reasons unsupported by any evidence. Likewise, computers and telephones can be searched and their contents copied. If the data found reveal no crimes, they would likely not be destroyed, but instead transferred to a general database. And the administrative search is not limited to copying evidence found on devices: it also allows the seizure of all evidence and documents “accessible from the original system or available for the original system.” The search could thus expand to include acquaintances of the person in question.29
In addition, any meetings on public roads may be prevented for “security reasons”—a provision already used during the state of emergency to prohibit a large demonstration that was to have been held on November 29 in Paris on the eve of the opening of the UN Climate Change Conference. The ban on public gatherings is also a threat to unions; a press statement by the General Confederation of Labor noted that “neither the opening of shopping malls nor sporting events in stadiums holding tens of thousands of people is subject to like measures.”30 The law grants broad discretion for disbanding associations or groups that might oppose government policy, that is, groups that “participate in the commission of acts that seriously undermine public order or whose activities facilitate this commission or incite it.”31 The disbanding of such organizations is final.
Constitutionalization of the State of Emergency
As President Hollande stated the day after the attacks, the government wants to include the state of emergency in the French Constitution. If the exceptional powers are included in the Constitution, then they can of course no longer truly be considered exceptional powers. This should rightly be called a change in political system, a move from a democratic system to a permanent state of exception—an oxymoron that serves to conceal a police state. Moreover, two new proposed laws reinforce this orientation. The first deals with the coming “exit” from the state of emergency by extending the powers of the police and prosecution. The second aims at considerably enlarging police prerogatives in normal times. In addition, four measures are projected to facilitate administrative searches, including the creation of the crime of “obstructing a search.” This is intended to let citizens know that they have no rights in relation to the police. Moreover, the police would be able to seize any object or document without submitting the matter to the state prosecutor, thereby freeing them from the last source of judicial control—even the control of the state prosecutor, a magistrate already directly subject to the executive branch.
- ↩See Jean-Claude Paye, “Merging the Law of War with Criminal Law,”Monthly Review66, no. 3 (July–August 2014):128–35.
- ↩Medhi Atmadi, “Les attentats de Paris ont définitivement tué la vie privée sur Internet,”Le Temps, November 17, 2015, .
- ↩French Law No. 2015-912 of July 24, 2015, .
- ↩European Court of Human Rights, ruling on the case of Vetter v. France, .
- ↩See David D. Caron, “If Afghanistan Has Failed, then Afghanistan Is Dead: ‘Failed States’ and the Inappropriate Substitution of Legal Conclusion for Political Description,” inThe Torture Debate in America, ed. Karen J. Greenberg (Cambridge: Cambridge University Press, 2005), 214–22.
- ↩USA Patriot Act of 2001, Pub. L. No. 107–56, 115 Stat. 272; text available at .
- ↩USA Freedom Act of 2015, Pub. L. No. 114-23.
- ↩Mark Jaycox and Rainey Reitman, “The New USA Freedom Act: A Step in the Right Direction, but More Must Be Done,” Electronic Frontier Foundation, April 30, 2015, .
- ↩Article L. 851-4, paragraph 2 of the French Code on Internal Security, notes 3 and 48.
- ↩Antoine Lefébure, “,”Le Monde, May 6, 2015, .
- ↩Natasha Lennard, “,”Salon, October 2, 2013, .
- ↩Andréa Fradin, “L’algorithme du gouvernement sera intrusif et inefficace. On vous le prouve,”Rue89, April 15, 2015, .
- ↩Robin Prudent, “,”Rue89, April 27, 2015, .
- ↩National Consultative Commission on Human Rights (CNCDH), “Opinion on the Draft Law on Intelligence as Submitted on April 1, 2015 to the President of the National Asssembly and Unanimously Adopted,” April 16, 2015, .
- ↩Article L. 821-3-1 of the French Code on Internal Security.
- ↩Nicolas Courtin, “”Univers Freebox, March 27, 2015, .
- ↩Text adopted in conditions provided for by Article 45, paragraph 3 of the French Constitution, by the National Assembly on June 24, 2015.
- ↩CNCDH, “Opinion on the Draft Law.”
- ↩Michel Foucault,Discipline and Punish (New York: Vintage, 1995).
- ↩Marcus André Vieira, “L’Unheimlich: du phénomène à la structure,”L’essai: Revue clinique annuelle, vol. 2 (1999): 135–44, .
- ↩Claire Richard, “Surveiller, tout en se cachant, est la forme la plus haute du pouvoir,”rue89, February 15, 2015, .
- ↩Antoinette Rouvroy, quoted in Andréa Fradin and Xavier Delaporte, “Au moins, dans un système totalitaire, on sait à quoi on a affaire,”rue89, March 28, 2015, .
- ↩French Law No. 2015-1501 of November 20, 2015, extending the application of Law no. 55-385 of April 3, 1955 relative to the state of emergency and strengthening the effectiveness of its measures, .
- ↩Manuel Valls, speech before the French National Assembly, November 19, 2015, .
- ↩Juliette Deborde and Frantz Durupt, “L’état d’urgence, un mois après,”Libération, December 14, 2015, .
- ↩Article 6 of Law No. 2015-1501 of November 20, 2015.
- ↩Valls, speech before the French National Assembly, November 19, 2015.
- ↩Law No. 2015-1501 of November 20, 2015.
- ↩Law No. 2014-1353 of November 13, 2014, strengthening provisions on the fight against terrorism, .
- ↩General Confederation of Labor, “Communiqué UD CGT Paris suite à l’interdiction de la manifestation du 22 novembre,” December 9, 2015, .
- ↩Article 6 of Law No. 2015-1501 of November 20, 2015.