Sweeping New Anti-Terror Laws in France Threaten Digital Freedom

November 23, 2015

Gonzalo Fuentes—Reuters

Gonzalo Fuentes—Reuters

Understandably shaken by the recent terrorist bombings, lawmakers in France enacted new laws to enhance national security.  Unfortunately, the broad scope of the emergency legislation has significant adverse impact on digital civil liberties.  The French experience illustrates the extent to which efforts to enhance national security can often include unreasonable threats to personal freedom.

One major civil liberties threat included in the new laws is their dramatic expansion of the ability of government authorities to search the electronic devices of individual French citizens.  Under the new law, the authorities are empowered to search all data stored on the device and all data accessible using the device.  This enables the government to search data stored in cloud systems and data stored on other devices that are accessible through the one being searched.  This represents a dramatic expansion of data search rights for government authorities.

Another important aspect of the emergency legislation is its grant of authority to the French government to block access to any website or other online content which the government claims promotes or incites terrorism.  This authority enables the government to act unilaterally and immediately to block public access to such online content.  It represents a sweeping grant of online censorship authority to the French government.

The emergency legislation also makes it illegal to access online content deemed by the government to promote or incite terrorism.  French citizens who conduct multiple visits to websites or other online content alleged by the government to be connected with terrorism can be subject to criminal law sanctions under the emergency legislation.  This broad scope constitutes a significant intrusion into digital freedoms enjoyed by French citizens.

The emergency legislation in France is reportedly scheduled to remain in effect at least until the spring of 2016.  Experience with emergency legislation in a range of jurisdictions suggests, however, that at least some of the provisions of the emergency laws are likely to remain in place far beyond that limited term.

Terrorist incidents and other national emergencies often underscore the best and the worst attributes of the societies they challenge.  A society’s strengths are highlighted by the resilience displayed by its people as they recover from the incidents and return to their normal lives.  The weaknesses of a society responding to such an emergency are illustrated by a rush to pursue security at the expense of fundamental freedoms and civil liberties.

France’s emergency legislation includes intrusions into the digital civil liberties of its people that are far too sweeping and are not justified by the current threat.  Ideally, the emergency laws will be eliminated sooner rather than later.  Yet if the experience in the United States in the wake of the September 11 attacks is any guide, it is far more likely that the French people have lost a substantial portion of their digital freedom for the foreseeable future.