August 1, 2021

France requested to comply with European law

We hesitate between the policy of the ostrich and that of the weight of the dead donkey. In terms of intelligence, France knows, like few other countries, how to resist the extension of democratic control over this sensitive matter which it believes to be the sole preserve of the State. This desire was, in all discretion, seriously thwarted, on May 25, by the judgment of the European Court of Human Rights (ECHR) which condemned the United Kingdom for violation of communications after complaints denouncing the abuses of the national mass surveillance system. If this decision concerns the British, it sets a precedent for the Member States of the European Union and places, on certain points, the French authorities in the most total illegality with regard to European law.

While they never speak in public on these subjects, the French authorities have lent a hand to their British counterparts in this procedure. Paris sent the Court its arguments justifying the massive collection of data. Words buried in the 200 pages of the judgment. While the ECHR is not opposed to mass surveillance as such, it has ruled that “Such a regime must be framed by end-to-end guarantees” and that in each country a legal framework that appreciates “The necessity and proportionality of the measures taken”. France is currently the subject of an appeal before the ECHR on the conformity of its means of surveillance with European law. The future will tell if French law is compliant.

No legal framework

The illegality of the French position in this judgment is, on the other hand, already flagrant on the question of the regulation of the exchanges of data between allied intelligence services. On this subject, the judgment of the ECHR tells us that France has defended the refusal of any control over these data in the name of the so-called “third service” rule which would require each country, according to often informal bilateral agreements, to never reveal the origin of this information. Failure to respect this commitment, writes Paris, would dry up these sources deemed “Vital to its national security”. The Court ignored this explanation considering that it is not based on any rule of law and that a democratic society cannot function without an independent structure ensuring the legal security of communication data.

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However, in France, there is no legal framework for this practice. The Directorate of Civil Liberties and Legal Affairs of the Ministry of the Interior and lawyers from the General Secretariat of the Government quickly identified the yawning legal hole created by the judgment of the ECHR. According to our information, Matignon and Beauvau thought, for a moment, to take advantage of the intelligence bill currently discussed and adopted at first reading, on June 2, in the Assembly, to add an article related to these exchanges. But they preferred to play for time against European courts.

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