[P2P-F] Fwd: [opennetcoalition] In France, La Quadrature du Net Brings Legal Challenge Against Mass Surveillance

Fri Feb 20 18:21:28 CET 2015

---------- Forwarded message ----------
From: La Quadrature du Net <contact at laquadrature.net>
Date: Thu, Feb 19, 2015 at 11:35 PM
Subject: [opennetcoalition] In France, La Quadrature du Net Brings Legal
Challenge Against Mass Surveillance
To: opennetcoalition at laquadrature.net

Themes: CYBERCRIME, FREE SPEECH, NET FILTERING, TERRORISM, PRIVACY,
PERSONAL DATA, SURVEILLANCE, MANUEL VALLS, AXELLE LEMAIRE, BERNARD
CAZENEUVE, PRESS RELEASE

La Quadrature du Net – For immediate release

Permanent link:
http://www.laquadrature.net/en/in-france-la-quadrature-du-net-brings-legal-challenge-against-mass-surveillance

In France, La Quadrature du Net Brings Legal Challenge Against Mass
Surveillance

*** Paris, 19 February 2015 — Together with FFDN[1], a federation of
community-driven non-profit ISPs, La Quadrature du Net is bringing a legal
action before the French Council of State[2] against a decree on
administrative access to online communications metadata. Through this
decree, it is a whole pillar of the legal basis for Internet surveillance
that is being challenged. This appeal, which builds on the European Union
Court of Justice's recent decision on data retention, comes as the French
government is instrumentalizing last month's tragic events to further its
securitarian agenda, with an upcoming bill on intelligence services. ***

In December 2013, the French Parliament voted the 2014-2019 Military
Planning Act[3] (Loi de programmation militaire, or LPM), which included
provisions on the extra-judiciary surveillance of the Internet: it not only
increased the number of police and intelligence services with access to
connection data, but the very scope of the data has also been widened (the
law refers to the “information and documents”, “as well” as metadata both
ISPs and hosting service providers may have).
Furthermore, this new legal regime comes with no preliminary control by the
CNCIS[4], the independant administrative authority in charge of supervision
of administrative interceptions of communications, an administration which
remains largely underfunded. Finally, this law makes it possible to engage
in realtime surveillance of communications, “by soliciting the network” of
operators, which in this case requires preliminary control by the CNCIS,
but still leaves wide open the threat of direct and massive data
interception.

At the time, in the midst of a global debate surrounding Edward Snowden's
revelations and as the French government was stubbornly refusing to be
transparent on its own surveillance practices, these new provisions –
which, according to their promoters, aim to validate existing “alegal”
practices (that is to say, illegal practices) – sparked a strong opposition
from civil society. But despite outcries, French Members of Parliament
nonetheless refused[5] to appeal to the Constitutional Council to check the
conformity of these measures with the Constitution.

On 24 December 2014, the government quietly passed[6] the decree[7]
implementing these measures. The publication of this decree is now the
occasion for La Quadrature du Net, together with the FFDN ISPs, to
challenge the entire legal construct of Internet surveillance, which
developped over more than a decade.

Through this legal challenge, it is indeed the very principle of a
generalised surveillance of the population that is targeted. The applicable
law is based on a wide-ranging data retention regime, whereby access
providers and hosting platforms based on the French territory are forced to
keep all their users' metadata for one year.

Data retention was extended to the entire European Union by a 2006
directive[8] adopted following the emotion created by the Madrid and London
attacks. Some national transposing laws had been declared contrary to the
constitution in several Member States, including Germany where such a
system is not currently enforced. Then, on 8 April 2014, the European Court
of Justice (ECJ) issued a historical decision invalidating the entire 2006
directive. In its Digital Rights Ireland[9] ruling, the Court clearly
explained that such data retention measures are contrary to fundamental
rights. According to the ECJ:

    “Directive 2006/24 affects, in a comprehensive manner, all persons
using electronic communications services, but without the persons whose
data are retained being, even indirectly, in a situation which is liable to
give rise to criminal prosecutions. It therefore applies even to persons
for whom there is no evidence capable of suggesting that their conduct
might have a link, even an indirect or remote one, with serious crime.
Furthermore, it does not provide for any exception, with the result that it
applies even to persons whose communications are subject, according to
rules of national law, to the obligation of professional secrecy.” (§ 58,
2014-04-08 Judgment of the Court[10])

In this decision, it is the principle of massive data retention obligations
that is challenged, in favour of a targeted surveillance of individuals for
which there already exists a legitimate reason to restrict the right to
privacy.

Everywhere in Europe, the ECJ judgment questions the laws surrounding
current Internet surveillance practices, in the context of the debate
created by E. Snowden's revelations. In Austria[11], in Romania[12], in
Slovakia[13] and in Slovenia[14], constitutional courts have since
suspended or canceled national laws on data retention.
In Sweden[15], in the Netherlands[16], and in the UK[17], important debates
are ongoing. As part of procedures distinct from the ECJ's judgment, the
UK's GCHQ was also recently convicted[18] for not being transparent
regarding its data exchange practices with the NSA. Lastly, the GCHQ's
programs are also the subject of a legal challenge before the European
Court of Human Rights (ECHR) issued by a coalition of NGO, and to which La
Quadrature du Net is taking part[19].

In France, up until now, the government has always refused to draw the
lessons of the Snowden revelations or of the ECJ's judgment. On the
contrary, these past months have seen the adoption of new exceptional
measures, not only with the Military Planning Act but also the 2014 law
against terrorism[20]. While the odious crimes in the Middle-East and in
Africa and the deadly and tragic Paris attacks are currently being
shamefully used to further authoritarian tendencies[21], with calls for
once again extending surveillance and criminalising the encryption of
communications, it is high time for France to also have this debate, both
in the public space and before its jurisdictions.

Police and courts must of course be able to do their job, but in a
proportionate way and within the boundaries of the rule of law. That is the
aim of this joint appeal before the Council of State. This is also the
first legal challenge carried directly by La Quadrature du Net, whose 2013
by-laws[22] have made it possible to take legal action to defend citizens'
fundamental rights in the digital sphere. Eventually, this legal challenge
will make it possible not only to formally refer the issue to the
Constitutional Council, since the LPM never underwent a constitutionality
check, but also to confront existing French Law with the ECJ and the ECHR's
case laws.

* References *

1. http://www.ffdn.org/
2. https://en.wikipedia.org/wiki/Conseil_d%27Etat_%28France%29
3.
https://www.laquadrature.net/en/final-adoption-of-generalised-surveillance-in-france-a-disturbing-political-drift
4.
https://fr.wikipedia.org/wiki/Commission_nationale_de_contr%C3%B4le_des_interceptions_de_s%C3%A9curit%C3%A9
5.
https://www.laquadrature.net/en/final-adoption-of-generalised-surveillance-in-france-a-disturbing-political-drift
6.
http://www.nextinpact.com/news/91534-le-decret-l-article-20-lpm-publie-on-fait-point.htm
7.
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000029958091&dateTexte=&categorieLien=id
8. https://en.wikipedia.org/wiki/Data_Retention_Directive
9.
https://www.laquadrature.net/en/data-retention-eu-court-of-justice-denounces-mandatory-data-retention
10.
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62012CJ0293&rid=1
11.
http://www.pcworld.com/article/2401520/austrian-court-axes-data-retention-law-following-eu-high-court-ruling.html
12.
https://www.digitalrights.ie/romanian-constitutional-court-holds-data-retention-unconstitutional/
13.
https://edri.org/slovak-constitutional-court-suspends-data-retention-legislation/
14. https://www.ip-rs.si/index.php?id=272&tx_ttnews%5Btt_news%5D=1256
15.
http://www.pcworld.com/article/2682732/swedish-isp-urges-european-commission-to-end-illegal-data-retention.html16.
https://blog.cyberwar.nl/2015/02/dutch-dpa-issues-advice-on-revision-of-telecommunications-data-retention-law/
17. https://www.dontspyonus.org.uk/problem
18.
http://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa
19.
https://www.laquadrature.net/en/la-quadrature-joins-the-legal-struggle-against-mass-surveillance
20.
http://www.laquadrature.net/en/france-adopts-anti-terror-law-eroding-civil-liberties
21.
http://www.laquadrature.net/en/instrumentalizing-fear-to-control-encrypted-communications-is-dangerously-anti-democratic
22. https://www.laquadrature.net/files/Statuts%20LQDN.pdf

** About La Quadrature du Net **

La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.

In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
digital age.

La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International.

List of supporting organisations:
https://www.laquadrature.net/en/they-support-la-quadrature-du-net

** Press contact and press room **

contact at laquadrature.net, +33 (0)972 294 426

https://www.laquadrature.net/en/press-room

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