[P2P-F] Fwd: [opennetcoalition] French State of Emergency: same player, play again

Wed Dec 14 17:06:38 CET 2016

---------- Forwarded message ----------
From: La Quadrature du Net <contact at laquadrature.net>
Date: Wed, Dec 14, 2016 at 6:00 PM
Subject: [opennetcoalition] French State of Emergency: same player, play
again
To: opennetcoalition at laquadrature.net

Press Release

*Tags :* FRENCH STATE OF EMERGENCY, SURVEILLANCE, BERNARD CAZENEUVE

La Quadrature du Net — For immediate release

Permanent link: https://www.laquadrature.net/en/French-State-of-Emergency-
same-player-play-again
French State of Emergency: same player, play again

*Update of 14 December 2016: French National Assembly adopted yesterday the
extension of the state emergency until July 2017. On Thursday 15 December,
it is Senate's turn to decide. *

Paris, 14 December 2016 — *The French National Assembly and Senate are
about to extend the state of emergency established in France one year ago,
on 13 November 2015, for the fith consecutive time. PM Bernard Cazeneuve's
administration is requesting a renewal until 15 July 2017 with no guarantee
that this state of emergency will end. France is settling into a permanent
state of Human Rights suspension and in limitations of civil liberties that
become more difficult to block everyday. La Quadrature du Net is calling on
MPs to deny this renewal and return to the Rule of Law and the respect of
rights and liberties, in this period of crucial elections.*
Permanent State of Emergency

As we said since its first establishment
<https://www.laquadrature.net/en/police-state-in-france>, the state of
emergency is a method of permanent governance that hurts the Rule of Law. A
persisting threat cannot justify it. Article 3 of 55-385 law of 3 April 1955
<https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000695350#LEGIARTI000006404784>
states: "The law authorising the renewal of the state of emergency beyond
12 days specifies its ultimate length". However, this is the fifth renewal
beyond this "ultimate" term. The government and those supporting this are
expecting us to get used to the weakening of liberties, which is sadly a
victory for those who threaten us with violence.
State of emergency inadequate for fighting terrorism

Since 13 November 2015, several reports
<https://www.laquadrature.net//files/Analyse_regime_juridique_etat_urgence.pdf>,
reviews <https://wiki.laquadrature.net/%C3%89tat_urgence/Recensement>,
articles
<http://assembly.coe.int/nw/xml/News/News-View-FR.asp?newsid=6004&lang=1&cat=8>
and analyses <https://wiki.laquadrature.net/%C3%89tat_urgence/Analyse>, as
well as several decisions by the French Constitutional Council and the
French Council of State on house arrests and extra-judicial searches showed
how ineffective the state of emergency is in the short-term fight against
terrorism, or to reduce the long-term threat. It seems that the state of
emergency is essentially used to collect intelligence and put people under
wraps when we don't know what to do with them.

Dominique Raimbourg himself, president of the Law Commission and of the
Parliamentary Oversight Commission of the state of emergency, underlined on
6 December 2016 how few judicial procedures related to terrorism have been
made possible by the state of emergency.

Subtitles to be added soon

The state of emergency diverted from its initial purpose as an
antiterrorism tool

Moreover, it has been demonstrated and recognised that the state of
emergency is not being used only for antiterrorism purposes, since it is
not required that all policies be related to the terrorist threat. It has
been used as a tool of social, security and political control, while
deliberately dispensing with the European Convention of Human Rights
<http://www.echr.coe.int/documents/fs_derogation_eng.pdf> for over a year,
without French MPs reacting in any meaningful way as to prevent this drift.
Yet it is exactly the complain of the Control Commission of the French
National Assembly report (fr)
<http://www2.assemblee-nationale.fr/documents/notice/14/rap-info/i4281/%28index%29/depots%29>
published last 6 December. MPs note that "a large majority of orders do not
address specific circumstances" and observe that "a logic of emergency and
exception has, in effect, replaced the rule of law". The massive recourse
to interdiction to be present in certain areas during months-long protests
against the Labour Law and the house arrests during big events such as the
COP21 last November are good examples.
A dangerous state of emergency regarding fundamental rights

The state of emergency was put in place one year ago, on 13 November 2015.
Because it allows for suspension of fundamental rights, the state of
emergency cannot be considered mere policy to reassure people as to the
commitment of the State in fighting terrorism. While it seems that a large
part of the population does not suffer from concrete effects of this
situation in everyday life, some are targeted for surveillance by the
police and intelligence services because of their religion, of the
neighbourhoods where they live, of their acquaintances, or of a number of
other discretionary reasons. These persons have been experiencing
pernicious effects because France is drifting away from the fundamental
rights that are the foundations of her justice system and her democracy.

The administrative police has a preventive goal : its role is to study
clues to foresee possible breaches of the peace (such as demonstrations,
events, beggars, etc.). However, in a state of emergency context, its
missions become based upon suspected behaviour of individuals : "I am
arresting you for breaches of the peace that you may commit ».1
<https://www.laquadrature.net/en/French-State-of-Emergency-same-player-play-again#footnote1_xp2x9ae>
The state of emergency law as modified by the law of 20 November 2015
formalises how prefects and the Minister of Home Affairs may perform such
divination of individual dangerousness, to prevent potential future acts.
To this end, administrative decisions are based on a perfect's
subjectivity, consolidating unjustified discrimination against certain
groups of the population, already strongly stigmatised. In February 2016 the
Defender of Rights (fr)
<http://www.defenseurdesdroits.fr/sites/default/files/atom/file/note_conference_de_presse_etat_durgence.pdf>
was already warning the State services against "deleterious effects" that
could seriously endanger social cohesion.
A fifth renewal which will not solve the issues already being raised for a
year

The bill presented to the French National Assembly and the French Senate
this week does not address the multiple concerns raised over the past year
not only by fundamental rights organisations but also increasingly by
magistrates, MPs and even visible in the public reflections of the
Vice-President of the Council of State (fr)
<http://abonnes.lemonde.fr/police-justice/article/2016/11/18/jean-marc-sauve-l-etat-d-urgence-est-un-etat-de-crise-qui-ne-peut-etre-renouvele-indefiniment_5033308_1653578.html>
.

   - The bill specifies no time limit to the state of emergency, allowing
   its renewal without constraint after 15 July, and extending the state of
   emergency well beyond the presidential or legislative elections: will it
   become impossible to experience one single nationwide event in this country
   outside the realm of the state of emergency? After the regional elections
   and the COP21 in December 2015, the UEFA Euro 2016 in June 2016 also served
   as a pretext to renew the state of emergency. Today it is the elections. In
   July 2017 what will be the argument used to extend the state of emergency
   again? No doubt there will always be a "good reason" to bypass the rule of
   law. We have already experienced this in France with the Vigipirate plan,
   which has been underway almost continuously since 1995.
   - The bill fails to answer to the increasingly massive questions about
   house arrests dragging on. Out of 95 people under house arrest today, 56
   already were during the latest extension in July and amongst these, 47 have
   been under house arrest from November 2015 2
   <https://www.laquadrature.net/en/French-State-of-Emergency-same-player-play-again#footnote2_zculawz>.
   At this stage it is no longer possible to talk about "restriction", it is
   indeed a "deprivation" of a fundamental freedom: the freedom of movement.
   Even the French Council of State, in its half-hearted opinion (fr)
   <http://www.assemblee-nationale.fr/14/pdf/projets/pl4295-ace.pdf> prior
   to this bill, emphasised that these never-ending house arrests constitute a
   severe attack on fundamental rights. It advocated for a maximum of 12
   consecutive months for a house arrest, and the parliamentary monitoring
   mission recommended a limit of 8 months in its 6 December report. But the
   government chose to extend this measure to 15 consecutive months, and to
   allow for extending or resuming house arrest whenever "new elements"
   appear. These elements always consist mostly in so-called "white notes"
   from the intelligence service, which are impossible to challenge since they
   are neither dated nor signed, total hypocrisy (fr)
   <http://www.assemblee-nationale.fr/14/amendements/4295/CION_LOIS/CL13.asp>
   .
   - The bill does not reflect the decision of the French Constitutional
   Council from 2 December, which censures the retention rules for data seized
   in judicial computer searches. The Constitutional Council deemed
   non-compliant (fr)
   <http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2016/2016-600-qpc/decision-n-2016-600-qpc-du-2-decembre-2016.148276.html>
   the lack of a duration limit for retention of data seized during a computer
   search resulting in no charge: "the legislator has not, concerning the
   retention of this data, provided for any legal guarantee to ensure a
   balanced equilibrium between the right to privacy and the
   Constitution-mandated obligation to safeguard public peace'. But as this
   censure will only come in force on 1 March, the government did not deem it
   necessary to bring its text into conformity with the Constitution.
   - This bill takes no account of measures that already exist in common
   law. When the state of emergency was extended for the second time on 26
   February 2016, it was for only 3 months because — as it did not want to
   convoy the impression that it wanted to suspend fundamental liberties
   indefinitely — the government conditioned the end of this exceptional state
   to incorporating some of its measures into common law. The penal reform
   project was therefore conceived to pick up where the state of emergency
   left off. It came to a vote under an accelerated procedure, installing
   several measures stemming directly from the state of emergency into common
   law, notably measures for the house arrest of persons returning from travel
   abroad with the purpose to participate in terrorist activities, or from a
   theatre of terrorist operations.

   At the same time, several tools and domains of competence granted to the
   intelligence services by the 2015 Surveillance Law have been considerably
   extended to police services, just as the fourth renewal of the State of
   emergency in July 2016
   <https://www.laquadrature.net/en/french-state-of-emergency-overbidding-mass-surveillance>
   was an opportunity to significantly expand the Surveillance Law. Finally we
   learn at the end of the latest notice of the Council of State (fr)
   <https://www.laquadrature.net/files/20161208_Avis_Conseil_Etat_5prolongation_Etat_Urgence.pdf>,
   dated 8 December, that yet another security law -- called "law for public
   security" -- is being prepared and should soon come before Parliament. This
   conjoining the infinite extension of the state of emergency with the
   proliferation of security laws (which are never limited to terrorism, but
   harden common law for numerous other infractions) leads to a significant
   hardening of our legislation without taking the time for basic
   consideration of what could and should be antiterrorist measures in a
   democratic society facing a danger which appears to be unending.

*Despite the many misgivings and warnings expressed both within their ranks
and by other organisations, will the herd of deputies and senators continue
to steer us into a permanent state of emergency? Do they really have a
long-term vision of the regime they want for France? Will they again
content themselves with voting following the whims of a public sentiment
aggravated by the scaremongering speeches of the government? These deputies
and senators who are about to vote for a fifth extension of the state of
emergency, and in the weeks to come for a new security law, are committing
themselves to indefinitely extending an exceptional regime which, in its
very nature, is a threat to fundamental rights, and engraving it even more
deeply into the daily life of the French. La Quadrature du Net calls on
them, on the contrary, to live up to their responsibilities and take the
time to truly consider the long-term impact of this policy which, little by
little, is tearing down all the checks and balances that make up the rule
of law.*

   - 1.
   <https://www.laquadrature.net/en/French-State-of-Emergency-same-player-play-again#footnoteref1_xp2x9ae>
   Cassia, Paul 2016 : Contre l'état d'urgence, Dalloz, p.75
   - 2.
   <https://www.laquadrature.net/en/French-State-of-Emergency-same-player-play-again#footnoteref2_zculawz>
   See the presentation of the Parliamentary control Commission's report by
   Dominique Raimbourg on 6 December 2016
   <http://videos.assemblee-nationale.fr/video.4495481_5846d7a391972?timecode=5317000#>
   .

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

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